about the saa sampler series law & ethics

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LAW & ETHICS LAW & ETHICS

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LAW & ETHICS

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LAW & ETHICS

Compiled with an Introduction

by Lisa A. Mix

Navigating Legal Issues

in Archives

Chapter 21

“Copyright & Related Rights Issues:

Permissions, Releases, Music, and

Moral Rights.”

by Menzi L. Behrnd-Klodt

Privacy & Confidentiality

Perspectives : Archivists &

Archival Records

Chapter 10

“Balancing Privacy and Access:

Opening the Mississippi State

Sovereignty Commission Records.”

by Sarah Rowe-Sims, Sandra Boyd,

and H.T. Holmes

The Ethical Archivist

Chapter 5

“Case Study: The Cigarette Papers.”

by Elena S. Danielson

PRIVACY & CONFIDENTIALITY PERSPECTIVESMenzi L. Behrnd-KlodtPeter J. Wosh

Edited byARCHIVISTS & ARCHIVAL RECORDS

PMS 728 Pantone Process Black

Privacy and Confidentiality Perspectives brings together a diverse selection of thoughtful and provocative essays that explore the legal, ethical, administrative, and institutional considerations that shape archival debates concerning the administration of access to records containing personal information. It is essential reading for archivists, records managers, archival educators and students who wish to gain a deeper under-standing of this difficult archival issue—and it is bound to stimu-late broader reflection and debate.”

— Nadine Strossen President, American Civil Liberties Union, and Professor of Law, New York Law School

Privacy and Confidentiality Perspectives fills a crucial void in the corpus of archival literature. . . . Based upon the knowledge and experience of professionals who already have been forced to navigate their way through the maze of competing interests and the seemingly contradictory precedents, the readings describe situations to which archivists from any type of repository can relate. Archival educators especially will find this anthology a gold mine of current information that can be used to stimulate thought and discussion in classes and help to prepare the next generation of archivists for the challenges they will face.”

— Timothy L. Ericson Director of Archival Studies, University of Wisconsin-Milwaukee

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Browse archives titles at www.archivists.org/catalog

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“ Today, legal issues are pervading archival administration more intensively and in more areas than ever before. Fortunately, a superb new manual, Navigating Legal Issues in Archives, written by Menzi Behrnd-Klodt and published by the Society of American Archivists, is now available to guide archivists in facing such problems. While its predecessor, Archives and Manuscripts: Law, by Gary and Trudy Peterson, served the last generation well, the current impact of the law on archives has changed in both detail and extent. The coverage of this new book reflects these changes well—its presentation is clear, thorough, and well-documented. The organization, index, and notes make the book easy to use and give assurance to its quality. Its author and publisher are to be commended for an outstanding aid to their profession.”

– MorrIS L. Cohen Professor emeritus of Law, and Librarian (retired), Yale Law School

“ There are legal aspects to almost every function an archivist performs: accessioning, processing, access, and even preservation. Navigating Legal Issues in Archives is the single best introduction to the most problematic legal concerns of archivists. In our increasingly litigious age, every repository should have a copy for reference, and every archivist should keep a copy near at hand.”

– PeTer B. hIrTLe Technology Strategist and CUL Intellectual Property officer, Cornell University Library


ISBN 1-931666-28-8

11/16”6” 6”

9”

Compiled with an Introductionby Lisa A. Mix

Navigating Legal Issuesin ArchivesChapter 21“Copyright and Related Rights Issues: Permissions, Releases, Music, and Moral Rights.”by Menzi L. Behrnd-Klodt

The Ethical ArchivistChapter 25“Case Study: The Cigarette Papers.”by Elena S. Danielson

Privacy and Confidentiality Perspectives: Archivists and Archival RecordsChapter 10“Balancing Privacy and Access: Opening the Mississippi State Sovereignty Commission Records.”by Sarah Rowe-Sims, Sandra Boyd, and H.T. Holmes

iiSAA SAMPLER

SAMPLERSAA

SAAMPLER

S AA MPLER

SAA

LAW & ETHICS LAW & ETHICS

Book TitleGoes Here

Book TitleGoes Here

Book TitleGoes Here

Book TitleGoes Here

Book TitleGoes Here

Book TitleGoes Here

LAW & ETHICS

Book TitleGoes Here

Book TitleGoes Here

Book TitleGoes Here

MPLER

LAW & ETHICS

Compiled with an Introduction

by Lisa A. Mix

Navigating Legal Issues

in Archives

Chapter 21

“Copyright & Related Rights Issues:

Permissions, Releases, Music, and

Moral Rights.”

by Menzi L. Behrnd-Klodt

Privacy & Confidentiality

Perspectives : Archivists &

Archival Records

Chapter 10

“Balancing Privacy and Access:

Opening the Mississippi State

Sovereignty Commission Records.”

by Sarah Rowe-Sims, Sandra Boyd,

and H.T. Holmes


Chapter 5

“Case Study: The Cigarette Papers.”

by Elena S. Danielson

PRIVACY & CONFIDENTIALITY PERSPECTIVESMenzi L. Behrnd-KlodtPeter J. Wosh

Edited byARCHIVISTS & ARCHIVAL RECORDS

PMS 728 Pantone Process Black

Privacy and Confidentiality Perspectives brings together a diverse selection of thoughtful and provocative essays that explore the legal, ethical, administrative, and institutional considerations that shape archival debates concerning the administration of access to records containing personal information. It is essential reading for archivists, records managers, archival educators and students who wish to gain a deeper under-standing of this difficult archival issue—and it is bound to stimu-late broader reflection and debate.”

— Nadine Strossen President, American Civil Liberties Union, and Professor of Law, New York Law School

Privacy and Confidentiality Perspectives fills a crucial void in the corpus of archival literature. . . . Based upon the knowledge and experience of professionals who already have been forced to navigate their way through the maze of competing interests and the seemingly contradictory precedents, the readings describe situations to which archivists from any type of repository can relate. Archival educators especially will find this anthology a gold mine of current information that can be used to stimulate thought and discussion in classes and help to prepare the next generation of archivists for the challenges they will face.”

— Timothy L. Ericson Director of Archival Studies, University of Wisconsin-Milwaukee

“

“


.78” 6”

9”

6”

“ Today, legal issues are pervading archival administration more intensively and in more areas than ever before. Fortunately, a superb new manual, Navigating Legal Issues in Archives, written by Menzi Behrnd-Klodt and published by the Society of American Archivists, is now available to guide archivists in facing such problems. While its predecessor, Archives and Manuscripts: Law, by Gary and Trudy Peterson, served the last generation well, the current impact of the law on archives has changed in both detail and extent. The coverage of this new book reflects these changes well—its presentation is clear, thorough, and well-documented. The organization, index, and notes make the book easy to use and give assurance to its quality. Its author and publisher are to be commended for an outstanding aid to their profession.”

– MorrIS L. Cohen Professor emeritus of Law, and Librarian (retired), Yale Law School

“ There are legal aspects to almost every function an archivist performs: accessioning, processing, access, and even preservation. Navigating Legal Issues in Archives is the single best introduction to the most problematic legal concerns of archivists. In our increasingly litigious age, every repository should have a copy for reference, and every archivist should keep a copy near at hand.”

– PeTer B. hIrTLe Technology Strategist and CUL Intellectual Property officer, Cornell University Library


ISBN 1-931666-28-8

11/16”6” 6”

9”

Chicago

About the SAA Sampler Series

The SAA Sampler Series features collections of select chapters from authoritative books on archives published by the Society of American Archivists. Produced exclusively electronically, the samplers are designed to give readers an overview of a pertinent topic as well as a taste of the full publications, which are available at www.archivists.org/bookstore. The content has been reproduced as it appeared in layout in the original publications. Pages have two sets of folios. The running head is the page numbering from the actual book. The footers have been added and reflect page numbering for this compilation.

Law and Ethics Contents

Introduction 1by Lisa A Mix

“Copyright and Related Rights Issues: Permissions, Releases, Music, and Moral Rights,” Chapter 21 from Navigating Legal Issues in Archives 6

by Menzi L Behrnd-Klodt

“Case Study: The Cigarette Papers,” Chapter 5 from The Ethical Archivist 27

by Elena S Danielson

“Balancing Privacy and Access: Opening the Mississippi State Sovereignty Commission Records,” Chapter 10 from Privacy and Confidentiality Perspectives: Archivists and Archival Records 46

by Sarah Rowe-Sims, Sandra Boyd, and H T Holmes

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Society of American Archivistswww.archivists.org

© 2012 by the Society of American Archivists All rights reserved

ISBN 1-931666-44-X

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Introduction to the Law and Ethics Sampler

Lisa A Mix

This is the first installment in the SAA Sampler Series, which introduces archivists to the best current thinking on pertinent professional topics

In this volume you’ll discover three outstanding pieces on legal and ethical issues for archivists—one overview of copyright and two case studies dealing with privacy and access—drawn from three books published by the Society of American Archivists: Navigating Legal Issues in Archives, The Ethical Archivist, and Privacy and Confidentiality Perspectives: Archivists and Archival Records

All archivists will face legal or ethical concerns throughout their careers In many cases we are caught unaware, and pressure is escalated by time crunches or demanding patrons The chapters from the three books repre-sented here aim to equip archivists to handle these sorts of dilemmas as they arise, by presenting practical information drawn from the real-life experiences of archivists

1) “Copyright and Related Rights Issues: Permissions, Releases, Music, and Moral Rights.” Chapter 21 (pp. 249–264) in Navigating Legal Issues in Archives by Menzi L. Behrnd-Klodt. Chicago: Society of American Archivists, 2008.

Menzi L Behrnd-Klodt, an attorney and archivist, presents a practical guide to navigating the complex quagmire of the rights issues associated with intellectual property The chapter was written in 2008, and it is especially timely now in light of recent cases, such as the 2010 case brought against the Smithsonian’s National Museum of the American Indian that involved use of copyrighted photographs from a donated collection 1 This chapter covers matters—such as rights ownership, usage, and permissions—that would later play out in that case and others

The chapter will be useful to archivists who manage image collections or digital collections, and to those who plan to present online digital surrogates

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from their collections Behrnd-Klodt also offers practical advice for assisting researchers in securing permissions Even though the onus for seeking and gaining permission is ultimately upon researchers, reference archivists can also spend a great deal of time and effort facilitating this process And, as the Smithsonian case referenced above illustrates, repositories can be subject to legal action if a creator’s rights are not properly protected

Behrnd-Klodt opens with a discussion of copyright and the permissions process for text, images, and music Extremely useful are the sample release forms for using images, oral history, and quotations She includes examples showing different levels of permission, and clearly explains what these differ-ences mean The chapter ends with an excellent discussion of artists’ moral rights, a topic not often covered in the archival literature

This chapter will guide archivists in negotiating donations of image col-lections and in facilitating the permissions process for researchers Perhaps more importantly, as many of us face pressure to “digitize it all and put it online”, we need to be mindful of creators’ rights as we craft deeds of gift and donor agreements This chapter is a no-nonsense guide to navigating these tricky waters

Navigating Legal Issues in Archives, the book from which this chapter is extracted, presents straightforward information for archivists on pertinent legal topics, such as administration, access, privacy, copyright, and permissions Each chapter begins by posing two questions: Why is this topic important to archivists? Who will find this chapter especially useful? Each question is followed by bulleted lists of answers, so that readers may immediately gauge its relevance to their particular situations

Navigating Legal Issues is scrupulously documented, with copious endnotes and numerous sources cited Full of practical information about real-life situa-tions, the book serves as a handbook that archivists will turn to again and again

2) “Case Study: The Cigarette Papers.” Chapter 5 (pp. 165–180) in The Ethical Archivist by Elena S. Danielson. Chicago: Society of American Archivists, 2010.

Elena S Danielson, who holds a PhD from Stanford University and worked for twenty-seven years in the Hoover Institution Archives at Stanford, relates the fascinating story of the “cigarette papers,” a cache of documents containing damning evidence against the tobacco industry that came to light

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in the 1990s The case study involves issues of authenticity, ownership, access, privacy, and the public’s right to know

Thousands of pages copied from proprietary documents were smuggled out of a major tobacco company by a whistle-blowing employee and sent anonymously to a researcher and anti-tobacco activist on the faculty of the University of California, San Francisco (UCSF) The faculty member placed the documents in the UCSF Archives, and that is where the story becomes relevant for archivists 2

Danielson interviewed the archivists and librarians, as well as the faculty member, involved in these events in preparing this case study that often reads like a detective story All parties describe how they faced such challenges as ensuring equality of access, presenting materials in a neutral manner, main-taining individual privacy, handling proprietary data, and preserving academ-ic freedom, while pitted against one of the most powerful industries in the nation

The events related here placed the archivists and librarians in new roles to which they were not accustomed, forcing them to operate beyond their com-fort zones As Danielson reminds us, the case was controversial within the archives community at the time The accounts of the staff members’ thinking as they developed procedures and balanced conflicting interests makes fasci-nating and enlightening reading for archivists today

Danielson concludes her discussion with seven miniature hypothetical case studies based on actual events, demonstrating the types of ethical dilemmas that archivists might face They present no right or wrong answers, but rather seek to help archivists “develop coping skills” to better equip them to handle such situations

The Ethical Archivist covers a range of ethical issues that can arise in all aspects of archival work, including acquisition, appraisal, access, and refer-ence Each chapter concludes with a set of discussion questions designed to get archivists thinking about how to apply the concepts to their daily work, and illustrating that there are often no clear answers

The book includes an extensive bibliography and several helpful appen-dices including codes of ethics, sample policies, and a select list of legislation affecting access to private information Archivists in many types of reposito-ries will find it to be an indispensable reference work

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3) “Balancing Privacy and Access: Opening the Mississippi State Sovereignty Commission Records,” by Sarah Rowe-Sims, Sandra Boyd, and H. T. Holmes. Chapter 10 (pp. 159–174) in Privacy and Confidentiality Perspectives: Archivists and Archival Records, Menzi L. Behrnd-Klodt and Peter J. Wosh, editors. Chicago: Society of American Archivists, 2005.

Legal and ethical concerns converge in “Balancing Privacy and Access: Opening the Mississippi State Sovereignty Commission Records,” by Sarah Rowe-Sims, Sandra Boyd, and H T Holmes of the Mississippi Department of Archives and History This case study illustrates how archivists navigated complex and challenging situations of balancing privacy and public access in “managing one of the most infamous collections of privacy-sensitive govern-ment records of twentieth-century America ” [p 160]

The study opens with a brief historical sketch of the Mississippi Depart-ment of Archives and History (MDAH), and its ethos of open access to public records This open access policy was tested by the complicated circumstances of the records of the Mississippi State Sovereignty Commission, established in the 1950s as a reaction to the Brown v. Board of Education decision in an attempt to assert the state’s rights against a perceived overreaching of federal authority In effect, the commission functioned as a surveillance agency, gath-ering intelligence on civil rights activists and “racial agitation”

The authors present a clear account of the legal actions that resulted in the initial closure, and subsequent mandatory opening, of the commission’s records Battles between privacy advocates and public access advocates ensued for years The case study describes the many challenges faced by the archivists in carrying out the mission of the MDAH while dealing with conflicting reg-ulations as well as strong opinions (and high emotions) on both sides of the legal dispute The narrative also discusses such practical issues as devising pro-cedures for redacting information from and providing access to a voluminous record group on very short notice The story of how the archivists met these challenges is illustrative and instructional not only for government archivists, but for any archivist whose repository holds a controversial collection

This article has been reprinted from the book Privacy and Confidentiality Perspectives: Archivists and Archival Records, in which Menzi Behrnd-Klodt and Peter J Wosh assemble a wide-ranging collection of essays and case stud-ies surrounding privacy issues in archives The editors acknowledge the long-running debate in the archival community on balancing privacy and access,

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and strive to present a diversity of viewpoints They state in the introduction that “comprehensiveness has been sacrificed in the interest of stimulating deeper reflection, provoking discussion, and offering archivists a variety of ways in which to consider their current practices and methodologies ” [p 5]

The book is arranged in four sections: legal perspectives; ethical perspectives; administrative perspectives; and institutional perspectives The Mississippi State Sovereignty Commission case study originally appeared in the administrative perspectives section

The chapters in Privacy and Confidentiality Perspectives involve a variety of different types of repositories including government, university, religious, and corporate, as well as diverse types of collections including personal, lit-erary, medical, and public The book contains extensive footnotes, and the appendices home in on specific statutes affecting privacy, such as HIPAA and FERPA This text will be useful to a wide range of archivists

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The three essays here guide archivists through a gamut of challenges that we could encounter in our work Most repositories will deal with rights management at some point in negotiations with donors Balancing privacy and access is a challenge that almost all of us face on a regular basis And while we all hope never to experience a baptism by fire such as those described in the two case studies, collections that generate controversy are often those with the highest research impact Readers of this volume will benefit from the experience and knowledge of the archivists involved in these chapters, thus gaining insight into handling these types of situations in their own repositories

Lisa A. Mix is the head of the Medical Center Archives at New York-Presbyterian/Weill Cornell Medical Center and a member

the Publications Board of the Society of American Archivists

Notes

1 The donor/photographer had not transferred copyright to the Smithsonian, and the user failed to obtain permission from the copyright holder The photographer sued both the user and the Smithsonian Peter Hirtle presents a summary of the case and its lessons for archivists at http://blog librarylaw com/librarylaw/2012/02/update-on-a-legal-action-against-a-cultural-institution html Accessed June 9, 2012

2 In the interest of full disclosure, I should mention that I was employed as the manager of Archives & Special Collections at UCSF from 2002 through 2011, well after the events described in this chapter, but I know several of the key players on the UCSF side in the case

248 NavigatiNg LegaL issues iN archives

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COPYRIGHT AND RELATED RIGHTS ISSUES: PERmISSIONS, RELEASES, mUSIC, AND mORAL RIGHTS

Why is this topic important to archivists?• Archivistswillbebetterabletounderstandand

assistresearcherswhoseekinformationandadviceaboutusingorpublishingfromunpublishedarchivalholdingsandcopyright-protectedmaterialotherthantext,suchasphotographs,audio-visualcontent,music,andartworks.

• Relatedrightsissuesmaycomplicatetheeffortsofarchivists,curators,andotherswhowanttouseorexploittheirownholdings.

Who will find this chapter especially useful?• Archivistsemployedbypublishers,museums,art

museums,andmusicalorganizations,andrelatedbusinessesandorganizations

• Archivistswhomanagephotographicordigitalcollections

• Referencearchivistswhoadviseresearchersonsecuringcopyrightpermission

• Corporatearchivistsandrecordsmanagerswhosecollectionsincludecopyrightlicensesandpermissionsand/orwhosedutiesincludemaintainingcorporaterecordscontaininginformationaboutrightsownershipandlicensing

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Using Copyrighted Text, Images, and music: The Permissions Process

Archivistsmayseldomneedtosecurecopyrightpermissionfortheirownuses,butmanyoftheresearcherstheyassistwill.Consequently,understandingthe typical copyright permissions process will help archivists better managearchivalrecordsinwhichthearchivesholdscopyrightsandallowthemtobetterassistresearcherswhoseektoreproduceorusetext,images,andmusic.1

Inconsideringusing,reproducing,orreprintingmaterialcreatedbyoth-ers, the initial inquiry typically iswhether thematerial isprotectedbycopy-right,2triggeringaninvestigationofthecopyrightstatusofthework.3Publicdomainworksgenerallymaybefreelyused.Ifaworkisprotectedbycopyright,the user must determine whether the anticipated use is permissible fair useundercopyrightlaw.4Researchersmayperusecopyright-protectedmaterialinthearchives,takenotes,makesinglecopiesforstudy,andquoteunspecified(butnotunlimited)amountsofprotectedcontentwithoutinfringement.Whenthedesireduseexceedsthepermittedfairuseorbecomesacommercialuse,awiseuserseekspermissionfromthecopyrightowner.

Determiningfairuseinadvanceofalawsuitisnotalwaysclear-cutoreasy.Incontemplatingwhethertoseekpermission,theuser’spublisherorcopyrightattorneymaybeable toadviseor theusermayevaluatehisorher toleranceforriskandpotentialliabilityforcopyrightinfringement.Requestingadvancewrittenpermission is a safe and conservative courseof action,particularly iftheusewillbesubstantialintermsofamountcopied,quantitiesproduced,andvisibility, or is commercial in nature, although it may involve royalty or usepayments. Securing permission seems simple, but may require perseverance,investigation, time, and money. Permissions or licenses5 to use copyrightedworkcanbeobtainedbytheuserdirectlyorthroughoneofmanycommercialservicessuchastheCopyrightClearanceCenter.6

In order to secure permission, the would-be user should accuratelyidentify the copyright owner.The copyrightnotice, nameof the author andpublisher,andtitleoftheworkprovidethebasicinformationneededconcerningrecently published works. When works incorporate protected material fromseveralsources,suchascontributionstoananthology,recordedmusic,websites,ormultimediarecordings,oriftheownerisnotreadilyapparent,asearchoftheU.S.CopyrightOfficerecordsmayhelp.Foruniqueandunpublished letters,diaries,orliterarymanuscripts,thearchivistmaybeabletoassistbasedonthedonoragreementandotherinternalrecords.Iftheusercannotidentifyorlocatethecopyrightownerafteragoodfaitheffort,theuser’snextstepistoweightherisksofusingunclearedmaterial.(Therisksofcopyrightinfringementmaybe

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reducedtoalevelacceptabletotheuserif,forexample,theuseisnoncommercialandtheamountusedisdiminishedinscopeorduration.)

Oncethecopyrightownerisidentified,itisnecessarytodeterminewhatrightsareneeded,forexample,therighttoquoteexactly,makecopies,orprepareaderivativework.Securing rights foruse in apublishedorperformedworktypically includesnotonly the right to reproduce,edit, andmodifymaterial,but also use in marketing, promoting, advertising, distributing, and sellingthenewwork. If electronic rightsor formats areneeded, theuser shouldbesuretosecureexpresspermission.Thepermissionsgrantshouldbeinwriting,clearlyspecifyingwhatrightsaregranted,whethertherightsareexclusiveornonexclusive,7 the scope of the permissible use(s), how long the permissioncontinues,whetherfeesorroyaltiesaredue,andrestrictionsontheuseofthematerial,andshouldbesignedbythecopyrightowner.

Permission to use Photographs; releases

Obtainingpermissiontoreproduce,publish,anddistributephotographsis similar to clearing written text for use, although it may involve clearingseveral layersofrightsandissuesthattranscendcopyrightlaw.Theintendedusemayaffectwhetherrightsmustbecleared.Printingaphotographwithoutpermission in a scholarlyworkmaybe fairuseor a low risk endeavorwhileusing the same photo in a national television advertisement may not. If thedesired photograph is owned by a photographer/copyright owner, obtainingpermissioninexchangeforausagefeemaybesimple.Manyphotographersopttoretaintheircopyrights,particularlyfornationaladvertising,buttheymaybewillingtolicensetheirworkdirectlytoendusers.Ifaphotographertransfersfull copyright ownership to the archives together with the photo prints andnegatives,thearchivesthenmayexercisealloftheexclusiverightsofcopyright,andgrantordenypermissiontootherstoreproduce,exploit,orotherwiseusethe photos, including licensing to third parties for such commercial uses asposters,software,andmerchandise.8

Obtainingpermissionfromthecopyrightownermaybebutthefirststepinclearingphotosforuse.Theusermustbeawareofthecontentofthephoto.Useofphotographsofprotectedworksoffineartmayrequirepermissionfromtheartistaswellasthecopyrightowner(andoccasionally,theartmuseumholdingtheartmayseekacreditand/orafeeforuseofadigitalimageortransparency).Photosincorporatinganidentifiabletrademarkmayrequirepermissionofthetrademarkownerforuseorreproduction,especiallyincommerce.Reprintingthe likeness of identifiable individuals without permission may invade their

cOPYright aND reLateD rights issues: PermissiONs, reLeases, music, aND mOraL rights 251


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privacy.Celebritiesnotonlyzealouslyguardtheirimagesbutmayinsistuponpaymentof feesandtheapprovalofuseof their likenesses tomaintaintheirimagesandcommercialviability.Clearlythereareinstanceswhereevenalegalassessmentthatauseisfairuseundercopyrightlawwillbumpintoareallifeneedtosecureadditionalpermissions,oftendependinguponthenatureoftheintendeduse.

Typically,eitheraphotographeroronewhoemploysthephotographerunderaworkmadeforhireagreementobtainsareleasefromthephotosubjectatthetimeofthephotoshoot,butfortheusesintendedbythephotographeror employer. A researcher who subsequently wishes to use the same photo(especiallyinacommercialuse)shouldknowwhatrightsinitiallywerereleasedor granted to whom, for what purposes, and for how long, and whetherthose rights extend to permit the researcher’s use. A release of rights to thephotographer may be exclusive to the photographer or limited in subject ortime,andarenotnecessarilytransferabletoadifferentuse.Ifnot,theresearchermayneedtosecurepermissionfromthephotosubjectsinordertomakeaneworanotheruseofthephoto.Ifthephotoisinthearchives,thearchivistmaybeaskedtohelpidentifythecopyrightowner(e.g.,thephotographeroremployer)and to provide contact information to enable the researcher to determinewhetheradditionalreleasesarerequired.

Somephotosofidentifiablepersonsandplacesmaybeusedwithoutvio-lationofprivacyrights.Thosewhoattendpubliceventsarepresumedbylawtohaverelinquishedsomeoftheirprivacyrights,asdocelebrities,politicians,andcivicleaderswhoarepublicpersonalities.Photographsofindividualsandcrowdsinpublicsettings,particularlythosewhohaveconsentedtobephoto-graphed,ifthephotographerwasreadilyvisiblewhileshooting,ifthescenelentitselftophotography,oriftherewasnoreasonableexpectationofprivacy,maynotrequireareleaseofrightsfromeachindividualshown.Photographsusedfornewsreporting,journalism,orotherfactualuse(asopposedtocommercialorfor-profituseofthephoto)alsotypicallydonotrequirearelease.Thefactsand circumstances of each instance will help determine whether releases areneeded.

Below are two examples of releases.Thefirst is an example of a verybroadreleaseofallrightstoensurethatthecopyrightowner(thephotographer)ownsall rights fromthe subjectof aphotocommissioned for specifieduses.Whenthecopyrightownerlaterdonatesthephotographstothearchives,thedonoragreementshouldtransferthephotographer’scopyrightandtotheextentpossible,allofthephotographer’srightsunderhisorherreleaseswiththephotosubjects, suchas thisone.Doing sowill enable thearchives to“stand in the

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photographer’sshoes,”intermsofbeingabletouse,grantpermissiontouse,enforce,andprotectthecopyrightinthephotos.Thesecondreleaseisonethatanoutsideresearcher(orpublisher)mayusetosecuretherighttouse,quote,orpublishvariousrightsfromthecopyrightowner,whentheintendeduseexceedsfairuseorisacommercialuse.Neitherofthesereleasesisprovidedwiththeinjunctionthattheymustorneednotbeused;theyareprovidedforinformationonly.Whetherandwhenanarchives,researcher,orpublishershouldusesuchreleasesshouldbedecidedwithlegalcounsel.(Notethatcapitalizedwordsandtermsusedintheseexamplesaredefinedandassignedthemeaningslistedineachrelease.)

Inthefirstreleasebelow,notethebreadthoftherightsobtainedthroughtheagreement’s language.Boththephotograph itselfanduseof the likenessare secured for the specified use (the “Book”) but also broadly to allow thebook tobeadvertised,promoted,displayed, andmarketed.Evenbroaderarethe rights to use thephotograph and likeness:“aswell as any future use” to“advertise,promote,displayand/ormarket”otherproductsorservices,aswellasforpublicrelationspurposesanduseonwebsites,“inallmedianowknownorlaterdeveloped”andin“alltradechannels.”Clearly,thisreleasesetsthestageforfuturecommercialuseandexploitationofthephotographsandlikenesses.The subject of the photograph also agrees not to seek future compensationforuseof thephotograph, and agrees to specific language ensuring that thephotographer is“thesole,exclusive,andperpetualowner”of thephotographwithallownershiprights,therighttocreatederivatives,control,display,use,reproduce,modify, sell, license,ordisposeof thephotograph,ornotuse thephotograph, allwithout any rightof approval by the subject.These are verybroadrights,indeed.Finally,thesubjectofthephotographagreesnottofileanyclaimagainstorseekanyredressagainstthephotographerorthephotographer’sbusinesspartnersoremployees,including,significantly,anyoneactingonbehalfof thephotographer, fromtheuseof thephotographandthe likenessof thesubjectofthephotograph,allofwhichfurtherprotectsthephotographerandhisorheractions.

Thesecondreleasebelowillustratesadocumentthatcouldbeusedinanysituation,andhasbeencreatedinthisexampleforaresearchertosendtotheownerofcopyrightinmaterialshousedinanddonatedtoanarchives,withoutatransferofcopyright.Inthisexample,theresearcherhasdeterminedorhasbeenadvisedbyhercounselthatherproposeduseofexcerptsfromcopyright-protectedmaterialhousedinthearchivesexceedsfairuse,andshehasdecidedto secure written permission from the copyright owner. The researcher hascontactedthecopyrightowner,communicatedher intent,andnegotiatedthe



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permissionssheneeds;thisdocumentthusmemorializestheagreementbetweentheparties.Thearchivesisnotapartytothisagreementandmay,infact,neverknowofitsexistence.

In this same example, note that in addition to the general statementabouttherightsthattheauthorwishestosecure,specifically:“variousexcerptsandquotationsfromlettersintheJohnDoepapers,”theresearcheriscarefultoclearallthatsheintendstousebyattachingacopyoftheactualexcerptsandquotationstobeused.Inaddition,fortheavoidanceofanyfuturedoubt,theresearcher,Smith,hastakencaretoreserveherrighttoeditormodifytheexcerpts,andtousetheminformatsotherthantheprintedwork.Shehasnot,however,securedbroaderrightstousetheexcerptsinanyworkotherthanthespecifiedbook,perhapsbecause the copyrightownerwouldhave requested additionalcompensationforsuchuses.Note,too,thatbothpartiesareidentifiedasistheirauthoritytoenterintoandgranttherightsrecitedinthisrelease.Theamountof compensation is recited in the release, further modified by the statementthatthecopyrightownershallreceivenothingadditionalforthestateduseoftheexcerpts.Thisistothebenefitofthewritersothatifthebookbecomesarunawaybestseller,noroyaltieswillbepaidtothecopyrightowner.Dependinguponthetypeofworktobepublishedandtheamountandsignificanceoftheexcerpts,suchdeterminationscouldbesignificantinthenegotiationofrightsbetween copyright owner and writer.This release, too, includes “release andholdharmless”languageprotectingtheresearcher/writerfromanyclaimthatmightbefiledbythecopyrightowner,andbyanyoneelseactingonbehalfofthecopyrightowner,arisingfromthewriter’suseoftheexcerpts.

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Rights License and ReLease – foR aduLt

[name of Photographer](the“Photographer”)creates,markets,uses,sells,anddistributesvariousphotographsandimages.Inconnectionwith[thePhotographer’sprojectorwork,e.g.,abookonwomen’sdressdesignsinthe1960s](the“Book”),thePhotographerdesirestophotographyouanduseyourphotographandlikeness.Therefore,bysigningthisdocu-mentbelow,youagreetothefollowingexclusivegrantstoPhotographeranditsassigns.

YouherebyexpresslyandirrevocablygiveconsenttoPhotographertophotographyouandgranttherighttouseyourphotographandphysicallikeness,whetheroneormorephoto-graphs(the“Photograph”)inPhotographer’sBookandinconnectionwithanyadvertising,promoting,displaying,and/ormarketingoftheBook,aswellasanyfutureuseofthePho-tographtoadvertise,promote,displayand/ormarketPhotographer’sproductsorservices,andforpublicrelationspurposesconnectedwiththeBookandthePhotographer,includ-ingwithout limitationuseonPhotographer’swebsite(s).The rightsand release createdhereinshallapplytoallmedianowknownorlaterdevelopedandtoalltradechannels.

YouagreenottoseekfromPhotographeranyfurtherpaymentorconsiderationofanykindwithrespecttotheuseofthePhotographbyPhotographer,oranyotheruseofthelicenserightsgrantedbythislicenseandrelease.

YouacknowledgethatPhotographeristhesole,exclusiveandperpetualownerofthePho-tographwhichownershipentitlesPhotographer,amongotherthings,toexclusiveandper-petual:

a. Ownershipof allduplicatesorderivativesof anyPhotographandanypromotionalmaterials;

b. Righttocontrol,displayandusethePhotographandanyperformancerightsembod-iedthereininanymedium,byanymeans,andforanypurposewhatsoever;and

c. Right to reproduce, modify, distribute, manufacture, advertise, sell, lease, license orotherwiseuseordisposeofsuchPhotograph.

YouherebywaivetheopportunityandrighttoinspectorapproveanyreproductionsofthePhotographoranyusetowhichtheymaybeput.ThePhotographerhasnoobligationtousethePhotograph.

YouherebyagreetoreleaseandholdharmlessPhotographer,itsofficers,directors,agentsand employees, and those acting under Photographer’s authority, against loss from anyclaim,actionordemandthatmaybebroughtatanytimebyyouorbyanyoneactingonyourbehalfforthepurposeofenforcingaclaimfordamagesonaccountoftheuseornon-useofthePhotographorlikeness,andfromallclaimsandliabilitiesofanykindarisingoutoforinconnectionwiththeuseandreproductionornon-useofthePhotographorthelikenessreferredtoabove.

By signingbelow, you certify and represent that youhave read the foregoing and fullyunderstandthemeaningandeffectthereof.Bysigningthisagreement,youintendtobelegallyboundbyit.

Datedthis___dayof ,2007.

Signature: Address:

PrintName: City,State,Zip:



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ReLease of Rights

[name of Researcher, e.g., Mary smith](“Smith”),presentlyaprofessorattheUniversityofArchivia, is [briefly characterize thenature of the researcher and/or research, e.g.,“researchingandpreparing forpublicationbyPublisher, Inc., amanuscriptabout theAmericanWest”](the“Book”).InconnectionwiththeBook,Prof.SmithwishestousevariousexcerptsandquotationsfromlettersintheJohnDoePapers,whosecopyrightisownedbyJaneWhite(“White”),includinguseofthename“JaneWhite”(collectively,the“Excerpts”),andwhichpresentlyarehousedattheUniversityofArchiviaArchives.TheExcerpts are attachedasfive (5) separatepages andmade apartof this release.Therefore,bysigningthisdocumentbelow,WhiteagreestothefollowingnonexclusivegrantstoSmithandherassigns.

Inexchange foraone-timepaymentof$500.00 toWhitebySmith, the receiptandsufficiencyofwhichisherebyacknowledged,WhiteexpresslygivesconsenttoSmithtouse,edit,modify,reproduce,publish,transmit,andotherwiseusetheExcerptsinandfortheBook,includingwithoutlimitation,useinelectronicformatsandwebsites,andtoadvertise,promote,display,market,andselltheBook.Therightsandreleasecreatedhereinshallapplytoallmedianowknownorlaterdeveloped.

WhiteagreesnottoseekfromSmithanyfurtherpaymentorconsiderationofanykindwithrespecttotheuseoftheExcerpts,oranyotheruseoftherightsgrantedbythisrelease.

WhiteacknowledgesthatSmithhastheperpetualrighttouse,display,reproduce,modify,distribute,advertise,license,orotherwiseusetheExcerptsintheBookinanymediumbyanymeansandforanypurposewhatsoever.WhiteherebywaivestheopportunityandrighttoinspectorapproveanyreproductionsoftheExcerptsintheBookoranyusetowhichtheymaybeput.

WhiteherebyagreestoreleaseandholdsharmlessSmith,herassigns,andanyoneactingunderherauthority,againstlossfromanyclaim,actionordemandthatmaybebroughtatanytimebyWhiteorbyanyoneactingonWhite’sbehalfforthepurposeofenforcinga claim for damages on account of the use of the Excerpts and from all claims andliabilitiesofanykindarisingoutoforinconnectionwiththeuseandreproductionoftheExcerptsreferredtoabove.

By signingbelow,Whitecertifiesand represents that shehas read the foregoingandfullyunderstandsthemeaningandeffectthereof,andthatbysigningthisagreement,sheintendstobelegallyboundbyit.

Datedthis___dayof ,2007.

Signature: Address: ______________

PrintName: City,State,Zip: ______

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Oral history, videography, and copyright; releases of rights

Whenresearcherswanttouse, reproduce,orquotefromoralorvideohistoriesinwritings,publications,andwebsites,similarrightsissuesarise.Anoralorvideohistoryinterviewconductedbyorforordonatedtoanarchivescontains contributions from both interviewer(s) and interviewee(s) and eachparticipantmayownthecopyrightinhisorherrecordedwords.Ideally,thosewhose voices are heard on the oral history recording or whose images andlikenessesappearonanyvideorecording,havesignedarelease9orcopyrightassignmenttransferringtheircopyrighttothearchives.

Followingaretwosamplereleasessuitableforreleasingand/orsecuringrights.Thefirstreleasegrantsandtransfersallrightsinanoralhistoryrecording,includingcopyright,tothearchivesthatrecordstheinterview(ortoitsparent,whicheverinstitutionisauthorizedtoacceptgiftsanddonations).Thisreleasesecuresbroadrightsforthearchivesorparenttouse(orlicense)therecordingand accompanying documentation, easing administration as the archives orparentneednotgobacktotheinterviewerforadditionalrightsinthefuture.Ifthearchivesorparentwishestoacquiremorelimitedrightsinitially,thisbroadlanguagemaybenarrowed.Iftheinterviewerisanemployeeofthearchivesoritsparent,hisorherworkproductbelongstotheemployer,andtheinterviewerneednotsignasimilarreleaseofhisorherrights.However,somestatelawsdorequireaspecificreleaseofsuchrights(particularlyiflikenessesandimagesarerecorded),andif there isuncertaintyaboutthe interviewer’semploymentstatus,oriftheinterviewerisafreelancer,consultant,volunteer,or“friend”ofthearchives,checkingstatelawand,ifneeded,securingareleaseofrightsfromtheinterviewerisagoodidea.

Thesecondrelease isanexampleofadocumentusedtosecurerightsto use a specific quotation from an existing recording in which the archivesorparentdoesnothaveallrights,andwhenuseofexcerptsisinexcessoffairuse.Inthisexample,thearchivesorparentorresearchersecurespermissiontousethequotationorexcerptsforavarietyofpurposes.Listingorattachingtheactualquotationorexcerptatissueisoptional,butitmaybeausefuladditiontoensurethatthereisnoquestionlateraboutwhichquotationorexcerptisthesubjectoftherelease,andwhatthereleaseactuallygrantedorpermitted.

Inanyrelease, it is importantthattheproperparty,thearchivesoritsparentinstitution,executethedocument,andthatthedesiredrightsarefullysecured.Ifthearchivesintendstopublishorpostaphotographoftheinterviewsubject, it shouldavoidany invasionofprivacyor relatedclaimbyacquiringinwritingtherighttousetheactualphoto(asanobject)and the likeness of the interviewee(therighttodepicttheperson’simage),aswellastherighttousetheinterviewee’sname.



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AccessionNo.______________

the histoRicaL societY1235 Main street, the city, st 02367 tel: (313) 444-4444 fax: (313) 555-5555

oRaL histoRY audio-VisuaL ReLease foRMI, herebygive,grant,and Name of Interviewee

assign forever, toThe Historical Society, as a donation, all of my right, title,andinterestincludingcopyright,inandtotherecordedconversationsmadebymeand ,asdescribedbelow,andtoanywritten Name of Interviewer

summaries,transcripts,orcopiesthereofandanydocumentationaccompanyingtheserecordings,forusebyTheHistoricalSocietyinanylawfulwayincluding,withoutlimitation,providingpublicaccess,quotation,andpublication,exceptfortheconditionsandrestrictionsspecifiedbelow,ifany:

Therecordedmaterialisfurtherdescribedasfollows:NumberandTypeofRecordings _____Date(s)Recorded _____Format(s) _____MajorTopicsDiscussed:

Signed Date _____ Interviewee

Address _____

Signed Date _____ Interviewer

THEFOREGOINGMATERIALISACCEPTEDFORTHEHISTORICALSOCIETYBy Date _____

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ReLease of Rights to use Quotation

[name of archives or Parent institution] (the “Archives”) [briefly characterize thenature of the archives or parent here, e.g., “documents and disseminates records oftheAmericanWest”].InconnectionwiththeArchives’collectingproject toeditandpublish a book about the OldWest (the “Project”), the Archives recorded your oralhistoryandotherrecollectionsabouttheOldWestonDecember12,2005atyourhome(the“Recording”)andnowdesirestouseaquotationfromyourRecordingtogetherwithyourname,profession,andbriefidentifyinginformation(togetherreferredtohereinasthe“Quotation”).Therefore,bysigningthisdocumentbelow,youagreetothefollowingexclusivegrantstotheArchivesanditsassigns.

TheQuotationis:“My great-grandfather was a close personal friend of Billy the Kid and he always told me that ‘The Kid’ was nothing like how he’s been portrayed by Hollywood.”

YouherebyexpresslygiveconsenttotheArchivestouse,edit,reproduce,publish,transmit,andotherwiseusetheQuotationtogetherwithyourname,photograph, likeness,andbriefbiographicalsketch,inandfortheArchives’Project,includingwithoutlimitation,the Archives’ provision of public research access to the Quotation, use in its ownpublications,exhibits,andwebsite,andforotherusesbytheArchivesandthirdparties,includingresearchers.Thequotationmaybeeditedbeforepublicationoruse.Therightsandreleasecreatedhereinshallapplytoallmedianowknownorlaterdeveloped.

YouagreenottoseekfromtheArchivesanypaymentorfurtherconsiderationofanykindwithrespecttotheuseoftheQuotation,oranyotheruseoftherightsgrantedbythisrelease.

You acknowledge that theArchives is the sole, exclusive andperpetual ownerof theQuotationwhichownershipentitlestheArchives,amongotherthings,toexclusiveandperpetualrightstouse,display,reproduce,modify,distribute,license,orotherwiseusetheQuotationinanymediumbyanymeansandforanypurposewhatsoever.

YouherebywaivetheopportunityandrighttoinspectorapproveanyreproductionsoftheQuotationoranyusetowhichitmaybeput.

You hereby agree to release and hold harmless the Archives, its officers, directors,employees,volunteers,andthoseactingunderitsauthority,againstlossfromanyclaim,actionordemandthatmaybebroughtatanytimebyyouorbyanyoneactingonyourbehalf forthepurposeofenforcingaclaimfordamagesonaccountoftheuseoftheQuotationandfromallclaimsandliabilitiesofanykindarisingoutoforinconnectionwiththeuseandreproductionoftheQuotationorthelikenessreferredtoabove.

Bysigningbelow,youcertifyandrepresentthatyouhavereadtheforegoingandfullyunderstand the meaning and effect thereof, and that by signing this agreement, youintendtobelegallyboundbyit.

Datedthis___dayof ________,2007.

Signature: Address: ______

PrintName: City,State,Zip: ______



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Permission to use music

Thosewhoowncopyrightintheirmusicalsoholdtheexclusiverighttoperform,mechanicallyreproduce,synchronize(useinconjunctionwithvideoorfilm), andprint theirmusic, and to control orpreventothers fromdoingso, including theexclusive right toauthorize thefirst recordingof thework.Amongthesixmajorexceptionstotheexclusiverightsofcopyright,Congresscreatedthecompulsory licenseofmusic,sothatonceasongisrecordedandreleasedtothepublic,copyrightownersmustlicenseotherstousethemusicinexchangeforpaymentssetbyCongress.10Thereafter,anyonemayrecordthecompositionuponpaymenttotheowners(typically,themusicpublishers)ofa“minimumstatutoryrate”(the“compulsoryrate”)establishedundersection115oftheU.S.CopyrightAct.11

Music publishers and musicians may control their rights themselves,or more typically, register compositions with one of three performing rightssocieties: the American Society of Composers, Authors, and Publishers(ASCAP), a membership organization for writers and publishers; BroadcastMusic, Inc. (BMI), a broadcaster-owned corporation that serveswriters andpublishers; or the Society of European Stage Authors & Composers, Inc.(SESAC).Thesethreeorganizationsnowcontrolandlicensetheperformingrights tonearly allof theworld’smusical compositions, andanyonewishingtoreproducesoundrecordingsshouldbeginbycontactingtheseorganizations.InadditiontoperformanceandsoundrecordingrightscontrolledbyASCAP,BMI,andSESAC,mechanicalreproductionlicensestousemusicinrecordingsareavailablethroughtheHarryFoxAgency,Inc.Synchronizationlicensestouse music in advertising, movies, and television, to display or reprint lyrics,or the right to print sheet music must be obtained directly from the musicpublishers.12

moral Rights or Droit Moral: The Artist’s Attribution and Integrity Rights

the european concepts

Copyrightprotects theproperty rightsof theauthoror creatorof theoriginal work, while its related counterpart of moral rights or droit moral inFrenchandUrheberpersönlichkeitsreichtinGerman,13ensuresthatauthors,artists,andothercreatorsownandcancontroltheirpersonalrightsofattributionandintegrityintheirworks.MoralrightswerecodifiedintheBerneConvention,themajorinternationalcopyrighttreaty,in192814andderivefromEuropeanintellectual property law concepts that authors and artists have inalienable,

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non-economicpersonalandreputational rights intheirworkswhichwarrantprotection.Theconceptofmoralrightsstandsforthenotionthatcreators,asthesoleownersoftheworkduringthecreativeperiod,havetherighttocreate,modify,ordisposeoftheircreationsastheyseefit,inordertoassurerespectforthemselvesandtheiroutput:

Droit moralassumesthateveryworkofartcarrieswithitthedistinctiveimprintof its creator;hence, the fateof thework and the reputationof the artist areinextricablylinked.15

Authorsandartistsmayprotecttheintegrityoftheirworksandtheuseoftheirnames,andpreventdistortionandmisrepresentationofandinterfer-encewiththeirworksundermoralrightsconcepts.Onlythecreatormaydeter-minewhatmodificationstotheworkwillbeallowed,andwhen,ifever,theircreationisreadyforpublication,sale,orpresentation.Evenaftertheworkhasentered the public realm, its creator still retains certain rights to control itsfuture treatment.Among the specificmoral rightswhich an authoror artistmayexerciseare:

(1) therighttopermitorpreventdisclosureorpublicationofaworkandtodeterminewhenandwhereanypublicationmayoccur

(2) the right to withdraw or retract a work after disclosure orpublication(includingtheauthor’s righttosecureall remainingcopiesofaworkandpreventadditionalprintings)

(3) therighttocorrectawork(4) the right to prevent future modification (such as painting over

worksoffineart,colorizingfilms,orremovingpublicsculpturesfromthepublicview)

(5) therighttoreplytocriticism(6) therightofattribution16

(7) therightofintegrity17

Theright of attributionencompassesnotonlytherighttoclaimauthorshipofone’swork,but theability topreventmisattribution,wrongfulattribution,and theomissionof the author’sname from thework.Theauthor alsomaypreventanother(suchasapublisher)fromcreditingaworktohimorherorusinghisorhernameas theauthor, in theevent that thework isdistorted,mutilated,ormodifiedinawaythatwouldharmtheauthor’sreputation.Theauthoralsohas theright topublishanonymouslyorpseudonymouslyandtovoidanysuchpromiselater.



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Theright of integritypermitsanauthororartisttopreventalterationordistortionoftheworkiftheresultwouldbeharmfultotheauthor’sorartist’sreputation.Theartistwhofullyexercisesthisrightmaylimitediting,retouching,colorizing, image cropping, color correction, or other modifications commoninpublishing.Additionally,theauthororartistmaypermit,prevent,orcontrolpublicexhibitionorpresentationofthework,aswellasanythingelsethataffectstheexpressionofhisorherpersonality,artisticintegrity,andhonor.

integration of moral rights concepts into american Law

Developmentand integrationofmoral rights concepts intoAmericanlawhasbeenslowandlimitedincomparisontoEuropeanactivity.SincetheU.S. adoption of the Berne Convention, however, awareness has grown andmany photographers, artists, and authors recognize their moral rights, whilemanyAmericanpublishersroutinelyseekawaiverofmoralrightsincontractswith content creators. Publication and dissemination of works via electronicmediahasincreasedtheinterestinbalancingmoralrightsownershipbetweencontentpublishersandcontentcreators.

TheCaliforniaArtPreservationAct (CAPA),18 enacted in1979,wasamongtheearliestlawsrecognizingmoralrightsinoriginalworksoffineart,including attribution and integrity rights. CAPA gave a living artist or theartist’s estate for fifty years after the artist’s death a right to sue any person“whointentionallydefaces,mutilates,altersordestroys”aworkoffineartof“recognizedquality,”includingartconservatorsfoundtobe“grosslynegligent”intheirduties.19TheNewYorkArtistsAuthorshipRightsAct20appliedthesameconceptstofineartandlimitededitionsofthreehundredorfewer.

visual artists rights act of 1990 (vara)21

ShortlyaftertheratificationoftheBerneConvention,theU.S.Congressamendedsection106(A)oftheCopyrightActof1976toaddtheVisualArtistsRightsActof1990(VARA),grantingthefirstfederalrecognitionoftherightsofattributionandintegritytoauthorsof“work[s]ofvisualart.”VARA’sadop-tionbroughtU.S.lawintoaccordwiththeBerneConvention’srequirements,whileitsexplicitpreemptionofthe“equivalentrights”ofearlierstatestatutesmaybringthevalidityofthose lawsintoquestion,at leastastoworksofartcreatedafterVARA’sJune1,1991effectivedateorworksprotectedbyfederalcopyrightlaw.Butsomerightsalsomayremainunderstatelaws.22

VARAprotectstheartist’sorcreator’srightsofattributionandintegrity.Theartistmayclaimauthorshipofhisorherworkandpreventtheuseofhisor

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hernameastheauthorofanyworkwhichheorshedidnotcreateoriftheworkisdistorted,mutilated,ormodifiedinawaythatwouldbeprejudicialtohisorherhonororreputation.Theartistalsomaypreventan“intentionaldistortion,mutilation,orothermodificationofthatworkwhichwouldbeprejudicialtohisorherhonororreputation,”and“destructionofaworkofrecognizedstature,andanyintentionalorgrosslynegligentdestructionofthatwork.”23Theactdoes not protect against alteration, mutilation, or destruction resulting fromnegligence,thepassageoftimeortheinherentnatureofmaterials,exhibition,24or conservation.25Only the individual artists andcreatorsof a jointworkofvisualartmayexercisetheserights,regardlessofwhoactuallyownscopyrightinthework.26

Exerciseofrightsofattributionallowsartiststoensurethattheirworksareproperlyandcorrectlyattributed,includingtheuseofcorrectandcompletecaptionsandcredits.27Theartistmayinsistthathisorhernamenotbeusedorassociatedwithaworkthattheartistdidnotcreateorwithaworkthatismodifiedinawayobjectionabletotheartist.Therightsofintegrityallowanartisttoprotectaworkfromdestruction,unauthorizedmutilation,ordistortioninawaythatwouldharmtheartist’sreputationduringtheartist’slifetime.

VARAapplies to“worksofvisualart,”narrowlydefined in the lawasa(1)painting,(2)drawing,(3)printthatexists“inasinglecopy,inalimitededitionof200copiesorfewerthataresignedandconsecutivelynumberedbythe author,” (4) sculpture “in multiples cast, carved, or fabricated sculpturesof200or fewer thatareconsecutivelynumberedby theauthorandbear thesignatureorotheridentifyingmarkoftheauthor,”or(5)stillphotographthatis“producedforexhibitionpurposesonly,inasinglecopysignedbytheauthor,orinalimitededitionof200copiesorfewerthataresignedandconsecutivelynumberedbytheauthor.”28OutsideofthescopeofVARA’sprotectionareallliteraryandothervisualworks,29includingreproductions,posters,illustrations,andwidelyprintedorreproducedphotographs;workscreatedbeforeVARA’sJune1,1991effectivedate,andallworksmadeforhire.

MoralrightsinworksofvisualartcreatedonorafterJune1,1991con-tinueforthelifeoftheartist,asopposedtocopyrightprotectionwhichcurrentlylastsforthe lifeoftheartistplusseventyyears.Theheirsofadeceasedartistcannotclaimaviolationoftheartist’smoralrights.Statelawsconcerningmoralrightsmayapplytoprotectworkscreatedpriortothatdate,however,andtheterminationprovisionsofsection106oftheCopyrightActwillalsoapply.30

MoralrightsmaynotbetransferredunderVARAbuttheymaybewaivedif theartistexpresslydoesso inwriting.31Awrittenwaivermustspecificallyidentifytheworkandtheusesoftheworktowhichitapplies.32Awaiverbyone



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authorofajointworkwillwaivethemoralrightsofallotherjointownerswith-out their consent.33RightsconferredunderVARAapplyonly toanoriginalworkofart,nottoanycopies,nordoesthelawaffectanycopyrightinthework.Atransferofcopyrightisnotsufficienttowaivetheartist’smoralrights,nordoesawaiverofmoralrightstransferownershipofcopyrightorphysicalowner-shipofacopyofthework.34Inshort,physicalownershiprights,copyright,andmoralrightsareseparateconceptsandrightsthatoperateindependently,maybetransferredseparately,andmaybeheldbyseparateowners.

To date, the legal decisions concerningVARA involve large works ofvisualartthatcouldnotbemovedwithoutinjuryordamage,worksnotofgreatvaluecreatedbyartistswhoarenotwellknown,andcasesdecidedtoprotectdevelopmentratherthanartworks.35Nonetheless,despitethelimitedeffectofmoralrightsinliteraryworksintheUnitedStates,manyAmericanpublishersaskauthorsandillustratorstowaivetheirmoralrightstoavoidlaterproblemsthat might affect production and marketing schedules. Debate continues,however,aboutwhethersuchwaiversof inalienablerightsareeffectiveunderstate and federal law and what the future of moral rights may mean in theUnitedStates.

TheVisualArtists’RightsActof1990doesnotrecognizeamoralrightinmotionpictures.IntheNationalFilmPreservationActof1988and1992,36Congress recognized the need for federal recognition of motion pictures asa significant American art form and created the National Film Registry tomaintainandpreservefilmsofcultural,historical,oraestheticsignificance,asnotedbyasealprovidedbytheLibrarianofCongress.

Droit de Suite

AnotherEuropeanconceptthathasyettobeincorporatedintoU.S.lawisdroit de suite,atypeofpropertyrightthatallowstheartisttobenefitfromthe second and subsequent sales of his or her work. In 2004, the EuropeanParliamentsetaroyaltyrateforthesecondandsubsequentsalesofartworksof four percent of sale prices between $2,540 and $42,340, and a decliningscalethereafter.37Droit de suite conceptswereincludedinanearlyversionofVARAbutweredroppedfromthebillasenacted.TheU.S.CopyrightOfficereportedthatinsufficient“economicandcopyrightpolicyimplications”existedtoestablishthisnewright,38andcoupledwithconcernsabouttheeffortrequiredtotracksalesofartworks,Congressrejectedthisconcept.

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NOtes FOr Pages 250–260 265

CHAPTER 21. COPYRIGHT AND RELATED RIGHTS ISSUES: PERmISSIONS, RELEASES, mUSIC, AND

mORAL RIGHTS

1 Withtheexceptionoffederalagenciesandarchives,thearchivesoritsparentlikelyholdscopyrighttomaterialscreatedbytheparent(forexample,amuseumarchivesholdingprofessionalpapersofthemuseum’sscientists/employees)aswellastomaterialsacquiredbydonationwithcopyrighttransferredtothearchives.

2 Copyrightlawandorphanworksissuesarediscussedinchapter20.3 Formoreinformation,see“HowtoInvestigatetheCopyrightStatusofaWork,”Copyright

InformationCircular22,U.S.CopyrightOffice,revisedDecember2004,availableathttp://www.copyright.gov.TheHarryRansomHumanitiesCenterattheUniversityofTexasatAustinandtheReadingUniversityLibraryjointlycompileasearchableonlinedatabaseofcopyrightcontactsforwriters,artists,andtheircopyrightholders(WATCH),availableasofOctober2005athttp://tyler.hrc.utexas.edu.Seealsothediscussionofcopyrightstatusandpublicdomainissuesinchapter20.

4 Decidingwhetherornottoseekpermissiontocopyorusecopyright-protectedmaterialshouldbelefttotheresearcher.Nothinginthisdiscussionisintendedorshouldbeconstruedasrecommend-ingthatthereaderorarchivistshouldmakesuchlegaldecisionsforothersorprovidelegaladviceoncopyrightorfairuse.Usersshouldconsultanexperiencedcopyrightattorneyforlegaladvice.

5 Thetermspermissionandlicenseareusedsomewhatinterchangeablyinthischapter,recognizingthatapermissionisaformoflicense,oftenlimitedinscopeorterm.

6 AmongthemanysourcesofinformationaboutthepermissionsprocessareRichardStim,Getting Permission: How to License and Clear Copyrighted Materials Online and Off (Berkeley,Calif.:Nolo,2000);and“Permission:WhatIsItandWhyDoINeedIt?”and“TheBasicsofGettingPermission”athttp://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview,availableasofOctober2005.

7 Usersmayfindthatnonexclusiverightstoexcerptmaybesufficientforuseinmostwrittenwork,butexclusivityofusemaybecomecriticalforcommercialuseofmusic,images,ormerchandiserightstopreventothersfromusingthesamematerialinthesameway.Exclusivitytypicallyrequireshigherpaymentsorroyaltiestooffsetthelicensor’sinabilitytolicensethematerialtoothersforprofit,whilenonexclusivelicensesallowthecopyrightownertoearnfeesthroughotherlicensing.

8 Dependinguponitsadministrativeormanagementrules,thearchiveslegallymaylicensetheuseofanymaterialsinwhichitownscopyright,butphotographstypicallyareingreatercommercialdemand.

9 Areleaseisavoluntaryrelinquishment,givingup,orsurrendertoanotherofsomeright,interest,orclaim,eitherinactualpropertyorintheabilitytotakeorrefrainfromtakingsomeaction.Asaformofalegalagreementorcontract,areleaseshouldbesupportedbyanexchangeofconsideration,thatis,thepartywhorelinquishessomeinterestorrighttypicallydoessotoreceivesomebenefitinreturn,whethermonetarypaymentorintangibleinnature(suchasseeingone’snameandinterviewinprint),andshouldbeinwritingsignedbytheintervieweeorsubjectoftherelease.Ifaminorchildisrecorded,herorhisparentorlegalguardianshouldsignthedocument.(Seethesectiononacquisitionandownershipinchapter4formoreinformationaboutcontracts.)

10 Thesixexceptionstotheexclusiverightsundercopyrightlaware:cabletelevisioncompulsorylicensesrequirerebroadcastofsignalsinexchangeforpaymentofsetfees;publicbroadcasting;jukeboxes;digitalperformanceofrecordalbumsincludingwebcasting;digitaldistributionofrecords(requiringthelicensingofdownloadingofrecordalbumsovertheInternet,telephonelines,andsatellites);andphonorecordsofnondramaticmusicalcompositions.Thelatterarethesubjectofcompulsorymechanicallicenses.Themusiccopyrightownermustissueacompulsorylicenseonlyifthesongisanon-dramaticmusicalworkpreviouslyrecordedandpubliclydistributed,andifthenewuseisonlyinaphonorecordandnotafundamentalchangetothemelodyorcharacterofthesong.Compulsorylicensesapplytodigitaldownloadsandformats.FormoreinformationseeDonaldS.Passman,All You Need to Know About the Music Business,6thed.,revisedandupdated(NewYork:FreePress,2006).

11 CongressperiodicallyincreasesU.S.statutorycompulsoryroyaltyrates.AsofJanuary1,2006,theroyaltyratefortheuseofsongsinphysicalphonorecordswas9.1¢forasongof5minutesorlessand1.75¢perminuteofplayingtimeorfractionthereofforsongsmorethan5minutes,whicheverisgreater,percopyofeachsongreproducedandsold.Feesarepaidtothecopyrightowner,musicpublisher,oragentauthorizedbycontractorstatutetocollectanddistributethesefees.37CFR

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266 NOtes FOr Pages 260–263

§255.3.Thisrateappliestoallsongsreproducedinphysicalmediasuchascassettes,tapes,andcompactdiscs,andalldigitalphonorecorddeliveriesintheformofpermanentdownloadsmadeanddistributedonorafterJanuary1,2006,regardlessofthedatewhenthelicensewasissuedortherecordingwasfirstreleased.37CFR§255.5;“StatutoryRateIncreaseJanuary1,2006,”one-pageannouncementissuedbyTheHarryFoxAgency,Inc.,November28,2005.

12 Thecomplexbusinessofmusicpublishing,licensing,andpermissionsisdescribedinPassman,All You Need to Know About the Music Business;andbyPeterM.Thall,What They’ll Never Tell You About the Music Business: The Myths, the Secrets, the Lies (& a Few Truths)(NewYork:Watson-Guptill,2002).

13 Translatedliterallyasthe“author’srightofpersonality.”14 SeeWilliamM.Landes,What Has the Visual Arts Rights Act of 1990 Accomplished?(Chicago:Uni-

versityofChicagoLawSchool,May2001);JohnM.OlinLaw&EconomicsWorkingPaperNo.123(2ndSeries),http://www.law.uchicago.edu/Lawecon/index.html.

15 MarieC.Malaro,A Legal Primer on Managing Museum Collections,2nded.(Washington,D.C.:SmithsonianInstitutionPress,1998),184,quotingfromIldikoPoganyDeAngelis,AssistantGen-eralCounseloftheSmithsonianInstitution.

16 “Attributionrightsarecloselyrelatedtolawsdesignedtopreventfraudanddeceptioninthemarket.Therefore,muchofwhatattributionrightscoverisalreadyprotectedbyexistinglaws”againstdeceptiveadvertisingandfraud.Landes,What Has the Visual Arts Rights Act of 1990 Accomplished?6.

17 Contractlawallowsartistssomeabilitytoprotecttheirintegrityrightsbyincorporatinglimita-tionsandcontrolsintosalesagreements,althoughtheinformalnatureofsalesofartworksandthedifficultyofenforcingsuchprovisionscancounteractthisability.Landes,What Has the Visual Arts Rights Act of 1990 Accomplished?7.

18 CaliforniaCivilCode§987,signedintolawonAugust1,1979,withaneffectivedateof1980.Connecticut,Louisiana,Maine,Massachusetts,Pennsylvania,NewJersey,NewYork,andRhodeIslandalsoenactedmoralrightslawspriortothepassageofVARA,protectingattributionandintegrityrights.ForacomparisonoftheprovisionsofVARAandCAPA,seeBrookeOliver,“WallsComeTumblin’Down:BalancingMuralists’IntellectualPropertyWithBuildingOwners’RealPropertyRights,”1999,Volume5,No.503,http://www.ibslaw.com,availableasofNovember2005.

19 AlanThaler,“HowCalifornia’sArtPreservationActAffectsConservators,”WAAC Newsletter3,no.3(September1981):2-3,availableasofDecember2005athttp://palimpsest.stanford.edu/waac/wn/wn03.

20 NewYorkCulturalAffairsLaw,Section14.03,1983.21 VisualArtistsRightsActof1990,titleVIoftheJudicialImprovementsActof1990,Pub.Law

101-650,104Stat.5089,5128,enactedDecember1,1990,codifiedinpartin17U.S.C.§106A,etseq.

22 Section301oftheCopyrightActpreemptsstateorcommonlawrightsforworksprotectedbycopyright.SeeMalaro,A Legal Primer on Managing Museum Collections,184-197,especiallynote342,page185;andLandes,What Has the Visual Arts Rights Act of 1990 Accomplished?2,citingLubner v. City of Los Angeles,45Cal.App.4th525(1996).LubnersuggestedthatVARApreemptedtheCalifornialaw.InPavia v. 1120 Ave. of Americas Assocs.,901F.Supp.620(S.D.N.Y.1995),thecourtnotedthattheartist’sNewYorkstatelawclaimofongoingmutilationofaworkondisplaywasnotpreemptedbyVARA,sinceVARAdoesnotprotectdisplayrights.RightsunderVARAlastonlyduringtheartist’slife,sopreemptionceasesattheartist’sdeath,andstatelawsofdefamation,invasionofprivacy,contracts,andunfaircompetition,whicharenotpreemptedbyVARA,mayper-mitclaims.See“WaiverofMoralRightsinVisualArtworks,”LibraryofCongress,U.S.CopyrightOffice,1996,availableasofNovember2005athttp://www.copyright.gove/reports/exsum.html.

23 17U.S.C.§106A(a)(1)-(3).Thenatureofharmtoone’s“reputation”issimilartotheinjuriessuf-feredthroughdefamation,whichhasbeenlitigatedandsettledintheUnitedStates.Thedefinitionof“honor,”hasnot.Themeaningof“workofrecognizedstature”hasbeendefinedincourtcasestorequireonlyminimalrecognitionofthework.

Theartist’sabilitytopreventdistortion,mutilation,orothermodificationoftheworkunderVARAissubjecttotheCopyrightAct,17U.S.C.§113(d),whichlimitstheartist’srighttopreventharmtoaworkofvisualartthatwasincorporatedinormadepartofabuildingifremovingtheworkwillcausethedestruction,distortion,mutilation,orothermodificationoftheworkandiftheauthorconsentedtotheinstallationoftheworkinthebuildingeitherpriortoJune1,1991orsignedanagreementwiththeownerofthebuildingafterthatdatewhichspecifiesthatinstallationoftheworkmaysubjecttheworktodestruction,distortion,mutilation,orothermodification,by

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NOtes FOr Pages 263–264 267

reasonofitsremoval.SeeLandes,What Has the Visual Arts Rights Act of 1990 Accomplished? 5.24 SeeIbid.,3,citingPavia v. 1120 Ave. of Americas Assocs.,901F.Supp.620(S.D.N.Y.1995),forthe

propositionthatanartistcouldnotcomplainthat“adimlylitexhibitionofhisworkoraninferiorqualityreproductionofhisworkinapamphletorwebsiteviolateshisintegrityorattributionright.”

25 17U.S.C.§106A(c).Modificationofaworkofvisualartresultingfromthepassageoftime,naturaldeterioration,inherentnatureofmaterialscomprisingtheobjectorartwork,conservation,andpublicpresentation(includinglightingandplacement)isnotthetypeofdestruction,distortion,mutilation,orothermodificationthatVARArestricts,unlesssuchdamageoralterationiscausedbygrossnegligence.Reproduction,depiction,portrayal,orotheruseofaworkalsoisnotunauthorizeddestruction,distortion,mutilation,ormodification.

26 17U.S.C.§106A(b).27 VARA’srightsofattributionrequirethatmuseumandexhibitlabelsonanoriginalworkofvisualart

beaccurateandproper.28 17U.S.C.§106A.29 Specificallyexcludedis“anyposter,map,globe,chart,technicaldrawing,diagram,model,ap-

pliedart,motionpictureorotheraudio-visualwork,book,magazine,newspaper,periodical,database,electronicinformationservice,electronicpublication,orsimilarpublication,”aswellas“anymerchandisingitemoradvertising,promotional,descriptive,covering,orpackagingmaterialorcontainer,”andanyworknotsubjecttocopyrightprotection.17U.S.C.§106A.

30 17U.S.C.§106A(d).31 17U.S.C.§106A(e).32 Anexampleofabroad,generalVARAwaiverforworksofvisualartisfoundinMalaro,A Legal

Primer on Managing Museum Collections,197:“TheArtistherebyacknowledgestherightsofattribu-tionandintegrityconferredbySection106A(a),paragraphs(2)and(3)ofTitle17oftheU.S.Code,andanyotherrightsofthesamenaturegrantedbyU.S.federal,state,orforeignlaws,andofhis/herownfreeactherebywaivessuchrightswithrespecttotheusesspecifiedbelowbythe[XYZ]Mu-seum(oranyonedulyauthorizedbythe[XYZ]Museum)forthefollowingworkofvisualart:Nameofwork: Specifieduses:[Examples:exhibition,installation,conservation,andanyotherstandardmuseumactivitiesinwhichtheattributionrightand/ortheintegrityrightsoftheartistmightbeimplicated.]”Suchawaivershouldbecreatedinduplicateandsignedanddatedbytheartist,andofcourse,acopyshouldbekeptbythemuseumorarchivesandacopygiventotheartist.

33 17U.S.C.§106A(e)(1).34 17U.S.C.§106A(e).35 InPavia,theartist’slargebronzesculpture,towhichtheartistretainedtitleandcopyright,was

displayedintheHiltonHotelfrom1963to1988,whenitwasremoved.Twopiecesofthesculpturewerestoredandtwoothersdisplayedinaparkinggarage.ThecourtfoundthatthesculpturewasprotectedbyVARAeventhoughitwascreatedbeforethelaw’s1991effectivedate,butbecausetheallegedmutilationalsooccurredbeforetheeffectivedate,theartistcouldnotmaintainaclaim.Pavia v. 1120 Ave. of Americas Assocs.,901F.Supp.620(S.D.N.Y.1995).InCarter v. Helmsley-Spear,71F.3d77(2dCir.1996)theartistscreatedahugelobbysculpturefrommorethanfiftytonsofrecycledmaterials.Thesculpturewasnevercompletedandthecompanymanagingthebuildingwhichwouldhousethecompletedsculpturefelluponhardtimesandevictedtheartistsfromthepremises.Theartistssued,fearingthattheirworkwouldbedestroyed.TheappellatecourtfoundthesculpturetobeworkforhirenotsubjecttotheprotectionsofVARAbecausetheartistshadreceivedweeklysalariesforthreeyearswithtaxesdeducted,asdidemployees.InShaw v. Rizzoli International Publications,51U.S.P.Q.2d1097(S.D.N.Y.1999),theartistclaimedthatrightsunderVARAwereinfringedbythepublisher’sbooks,butfailedtoallegeintentionaldistortion,mutilationorothermodificationoftheworksthatwouldharmhonororreputation.Thecourtfoundforthepublisher,becausetheclaimedeconomicharmisnotprotectedunderVARA.InMartin v. City of Indianapolis,192F.3d608(7thCir.1999),theartist’slargemetalsculpturewasplacedonprivatelandunderanagreementwiththecityofIndianapolis.Thecitylaterpurchasedthelandanddemol-ishedthesculpturewithoutnoticetotheartisttomovethesculpture,asrequiredbytheagreement.Thesculpturewasfoundtobeaworkof“recognizedstature,”butthecityhadnotactedwillfully;its“bureaucraticfailure”wasnotsufficienttograntenhanceddamagesunderVARA.

36 Pub.Law100-446andPub.Law102-307,2U.S.C.§§1791-179v.37 Europeangovernmentshaveuntil2008toimplementtheserules,whichforthefollowingsixyears

willapplyonlytotheworksoflivingartists.Opponentsoftherulingincludedmanywell-known

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268 NOtes FOr Pages 264

artistswhofeltthepaymentstructurebenefitedonlythefamousattheexpenseofstrugglingartists.38 Droit De Suite: The Artist’s Resale Royalty, A Report of the Register of Copyrights(Washington,D.C.:

GovernmentPrintingOffice,1992).

164 t h e e t h i c a l a r c h i v i s t


Elena S. Danielson

Browse archives titles at www.archivists.org/catalog Ë|xHSLJNBy666343zv*:+:!:+:!

ISBN 978-1-931666-34-2


Th

e Eth

ical Arch

ivist

Elen

a S. D

anielson

Archivists deAl with unique ethicAl chAllenges on A regulAr bAsis, And these complex conundrums Are the focus of this compelling book by elenA s. dAnielson. The author rethinks the concept of the ethical archivist in the current era of profound change. She demonstrates how the daily decisions made by archivists connect to larger issues of social responsibility and the need to construct a balanced and accurate historic record. Danielson both analyzes real-life cases and poses theoretical questions to help working archivists better understand ethics as an applied practice. The author clearly illustrates how ethical considerations and dilemmas emerge in seemingly routine facets of archival work—from acquisition and appraisal through disposition and deaccessioning. Danielson also focuses on such fascinating phenomena as forged documents and displaced archives. She thoughtfully considers the archivist’s responsibility to protect cultural property, and includes commentary on current trends in privacy law, clearly explaining relevant legislation. Helpful appendices include an analysis and reference to ten professional codes of ethics, sample acquisition guidelines and collections management policies, a select list of federal legislation affecting access to private information, and a bibliography. Do the right thing and read this book!

This chapTer analyzes a single case sTudy, one ThaT has been referred To several Times in This TexT because of iTs imporTance. The case is

primarily about open and equal access to once-privileged proprietary,

internal business archives. In addition, the study cuts across many other

fundamental ethical topics: respect for property rights, the acquisition

of stolen papers, the authentication of a gift without reliable provenance

background, third-party privacy in massive amounts of data, privileged

circulation and use records, attorney-client privilege, freedom of informa-

tion, and the right of citizens to be informed about important public health

issues that affect their welfare. The case diagnoses what happens when

different ethical imperatives come into conflict and how the professional

archivist negotiates these conflicting interests. It demonstrates the way

digital technology can be used to great strategic advantage in the process.

With its David and Goliath dynamics, it shows how librarians and archivists

evaluated risk in the face of a potentially long and expensive lawsuit.

The conflict between tightly restricted, proprietary records and the

public’s right to vital information exploded in the 1990s during the fiercely

I would not have continued the fight if I didn’t feel strongly about

freedom of information.

—Karen Butter1

Case Study:The Cigarette Papers

c h a p t e r 5

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29

fought “tobacco wars.” The competing demands of private corporations

and public health advocates were no longer just abstract ethical dilem-

mas. Archivists were confronted with controversial issues from the entire

range of fundamental archival problems. It would be difficult to formulate

a hypothetical case study that more effectively demonstrates the values

at stake than the “cigarette papers,” as the case is known. The tobacco

wars were most fundamentally about two charged issues: serious health

hazards and access to records about them. Fortunately, a series of court

decisions around the country, as well as the Multistate Master Settlement

Agreement of 1998, delivered to the public massive amounts of research

and medical and corporate documentation.2 Several books and numerous

articles summarize and analyze these mountains of paper.3 The cigarette

papers case is emblematic of a host of existing conflicts between privileged

information in private business archives and the public interest. Archivists

will no doubt continue to find such documentation, often unexpectedly, in

the course of their work. Thinking through the issues in advance provides

a framework for making rational decisions under pressure.

Archivists played a crucial role in the tobacco controversy at a pivotal

moment in 1995. The management of access to documents was a key ele-

ment in the drama: who gets to see what, and how quickly? The archivists

involved were working in an impassioned environment as the press, con-

gressmen, judges, product liability lawyers, defense attorneys, and business

executives were vying for advantage in a war with numerous fronts around

the country and some billions of dollars at stake. All the players wanted

rapid access to information; some wanted exclusive access.

The following narrative provides an overview of the different factors

at play in this drama. It leads to a discussion of whether this case can be

used as a model, and, if so, under what circumstances.

In 1994, an anonymous whistleblower, who called himself Mr. Butts

after a well-known cartoon character, leaked thousands of copies of highly

confidential, internal documents from the Brown and Williamson Tobacco

Corporation (B&W), the third largest tobacco company in the United

States. Various sets of copies were circulated to the media, to Congress,

and to academics over the course of several months. The copies were

29SAA SAMPLER

case study: the cigarette papers 167

30

passed around in a surreptitious manner due to fear of retaliation from

B&W—well-justified fear, as it turns out. Eventually, proprietary and

privileged information from the previously secret papers, some ostensibly

covered by the attorney-client privilege, rapidly became public in three

different arenas. On May 7, 1994, journalist Philip J. Hilts published an

article in the New York Times entitled “Tobacco Company Was Silent on

Hazards.” In June 1994, Congressman Henry Waxman opened congres-

sional hearings before the Subcommittee on Health and the Environment,

which subpoenaed documents and sworn testimony from B&W executives.

As to academia and archives, on May 12, 1994, a box containing about four

thousand pages of B&W internal records arrived at the office of Professor

Stanton A. Glantz at the University of California medical school in San

Francisco (UCSF), where he had been researching the health dangers of

smoking. This was apparently a larger set of papers than Hilts had acquired.

It is not clear exactly how the copies got from “Mr. Butts” to Professor

Glantz, or how many hands they passed through, but word was out.

Glantz had already heard about the papers. After looking through

them, he immediately determined that they were authentic, partly because

there were several chillingly accurate references to Glantz himself in them.

B&W soon confirmed the authenticity of the papers when they demanded

their return as stolen property. Upon reading the copies, Glantz recognized

trouble. In an interview fifteen years later he recalled thinking about the

implications: “This is litigation, and I’m not a litigation guy.”4 At the same

time, for a public health researcher interested in the medical effects of

tobacco, reading the papers was like “an archeologist finding King Tut’s

Tomb.” The data filled gaps in his research. Glantz analyzed the “smoking

gun” documents for a series of articles on tobacco industry research into the

health dangers of their products. While he did not advertise the existence

of the materials, word got around fast. A stream of people contacted him

about reading the cigarette papers. Glantz was concerned about the dual

task of preserving the hotly contested data and providing other researchers

with access in an orderly fashion.

In the summer of 1994 he placed the documents as an unrestricted

collection in the UCSF library where there was a new archival collecting

30SAA SAMPLER


31

focus relating to tobacco use and public health—an initiative called the

Tobacco Control Archives. Glantz already had a collection in the UCSF

archives. While it is normal procedure for faculty to preserve their research

sources in this manner, the transfer was not a simple transaction in this

case. Often sensitive materials are held back from the archives, but Glantz

had come to respect the librarians’ commitment to freedom of information

a decade earlier.

In the 1980s, Glantz acquired a pirated copy of an antitobacco film,

Death in the West. As a result of a tobacco company lawsuit, a court in

Britain had ordered the destruction of all copies and out-takes of the foot-

age. Glantz asked his legal counsel at the university how to protect this

rare surviving print. This occurred back in the era before copies could be

made easily from European audio-visual formats. The attorney suggested

placing the video in the library, where it would be both preserved and

made accessible. Legal counsel advised that courts are very reluctant to

remove materials from libraries. Such decisions could be seen to violate

First Amendment protections. “This was my first engagement,” said Glantz

in the same interview, “with libraries as subversive places.” By subversive,

he referred to a profession capable of doing “the right thing” in the face of

well-financed opposition.

Ten years later, in 1994, as researchers learned about the purloined

papers by word of mouth, Glantz was again faced with the same issues

he confronted with the pirated film: how both to preserve the materials

and provide access. The library and archives again seemed like the most

logical place to manage the documentation that arrived anonymously.

By then he had supplemented the leaked copies with additional materials

that were being released by the tobacco companies in an attempt to defend

themselves. When read together with the purloined papers, the voluminous

documents produced by the companies fit like jigsaw pieces into the larger

picture and were ultimately self-incriminating.

Karen Butter, the director of the UCSF library and archives, accepted

the transfer of the cigarette papers to the archives with the usual record

transfer forms, but she knew this would be an unusual case and under-

stood the scope of the problem immediately. “We knew we were in for

2931SAA SAMPLER


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a battle from the beginning, but I (and Robin Chandler as well) felt this

was the right thing to do.”5 Her first step was to line up legal support, not

just for Glantz, who as a faculty member had a privileged position, but

also to protect the ordinary library and archives staff, who might be more

vulnerable in a legal battle. “We had many meetings with both the UCSF

and UC legal counsel in the process of accepting and making the gifts

available,” she explained. Butter, not a contentious person by nature, was

very familiar with the American Library Association’s work on freedom

of information, and knew the territory. She felt a strong obligation to

make the information available. If UCSF did not open this public health

information, she believed that it was unlikely anyone else would. At the

same time, she opened the collection in a neutral way, without unusual

publicity and without any official interpretation from the staff, whatever

their personal opinions might be.

The UCSF archivists quickly organized the papers and opened them for

public use—a completely normal procedure when donors do not impose

restrictions. Given the controversial subject matter, however, opening

these papers was a courageous act certain to draw a strong response from

B&W. It would inevitably embroil the library and its parent institution in

a battle with a powerful adversary—something that risk-averse archivists

tend not to do under normal circumstances. Glantz and the archivists were

taking on an enemy capable of aggressive tactics, including personal retali-

ation.6 Glantz acknowledges that he feared that the university attorneys

might make him “walk the plank”—withdrawing support for access to the

cigarette papers.7 But the University of California, with its long history of

defending academic freedom, was supportive of both Glantz’s research and

the unrestricted availability of his sources in the archives. The university

took a stand in favor of open and equal access.

B&W executives believed that the papers had been illegally pirated

and were essentially stolen property. Under ordinary circumstances, one

could easily understand this perspective. In their view, internal corporate

records covered by the attorney-client privilege and by trade secret pro-

tections had been unlawfully released. Predictably, B&W filed suit against

the university to demand the return of the documents. B&W also sent

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33

private investigators into the UCSF reading room to monitor and photo-

graph use of the collection. They demanded access to circulation records

to determine who actually used the papers. In the U.S., the American

Library Association and the Society of American Archivists have a long

tradition of protecting user information. Their advocacy of the free flow

of information has not extended to their own circulation records. For the

staffers, these intrusions must have been a serious test of their resolve. On

May 25, 1995, the California Superior Court for the City and County of

San Francisco denied the company’s request. B&W also failed in efforts

to block the release of documents by Congress and in several court cases

around the country. Various courts came to parallel conclusions in favor

of the freedom of information. The archivists could continue to provide

access to the cigarette papers.

And the demand for this information was huge, certainly beyond

the capacity of the UCSF archives reading room. A solution was on the

horizon. Scanners were becoming commercially available and the World

Wide Web became easily accessible with the emergence of user-friendly,

graphical browser technology. The UCSF staff immediately saw the util-

ity of digitizing the cigarette papers and took advantage of the new tool.

CDs were made, which helped ensure that the documents’ content could

not be “returned” to the company. At midnight of June 30–July 1, 1995,

within a few months of the favorable court decision, UCSF placed thou-

sands of scanned, indexed, and searchable documents on the Internet for

immediate use, free of charge. Glantz and his colleagues published a set of

related articles in a dedicated issue of the Journal of the American Medical Association (JAMA), which also appeared in July 1995. Like the opening of

the archival collection, the publication by JAMA was considered by many to

be a courageous act at the time. Conveniently for the users, the documents

referenced by Glantz in the articles could be called up in their entirety on

the UCSF website for verification and independent interpretation.

Controversial political decisions are typically made in a charged atmo-

sphere at moments of mobilized public opinion, at a time when speed and

ease of access to information are vital. In such an environment information

that requires a cross-country trip is not “open” even if there is no formal

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restriction on use. In this case the website was accessed within minutes of

the release. During the first year it was available, researchers from forty-four

thousand different addresses viewed approximately half a million pages

of documents. The CD-ROM version of the documents was produced for

sale at $250. It sold well, despite the existence of the online version. There

must have been some concern that the online version might be dismantled

at some point, making a more permanent version desirable. At the same

time, the distribution of CD versions made moot any efforts at dismantling

the website. The site remained stable and growing. A new chapter in free

and equal access opened up.

Karen Butter had to contend with the consequences. This stand for

principles came with a price tag. “The legal challenge was very, very time

consuming—both in working with our legal counsel, responding to

requests from Brown and Williamson and in giving depositions. I would

not have continued the fight if I didn’t feel strongly about freedom of

information.”

As stated above, Glantz and his collaborators were attacked by the

tobacco industry; there were numerous attempts to undermine their

careers. They accepted the rough, personal nature of the fight and perse-

vered. Because of the controversy, they had difficulty attracting a commer-

cial book publisher to issue their findings; their book, The Cigarette Papers, was published in 1996 by the University of California Press. Archivists

ensured that all the documents cited in the book, as well as the text itself,

were available online, initially by subscription and later completely open

and free of charge.8

The cigarette papers contained two levels of documents, one embedded

in the other. One level consisted of proprietary scientific research funded

and conducted by the cigarette industry into the role of tobacco and its

pharmacologically active ingredients. The second level of information

consisted of corporate strategies for concealing their own findings. What

did the contents of the papers reveal?

According to Glantz’s analysis, the documents reveal an expen-

sively funded campaign to disseminate a false interpretation of medical

data. Some would interpret this as a conspiracy to commit fraud. Glantz

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cataloged these discrepancies between internal research findings and pub-

lic corporate statements.9 In addition to concealing industry-sponsored

scientific research that documented the medical dangers of their product,

the company leaders formulated strategies for obfuscating similar reliable

evidence emerging from independent research and actively denying the

harmful effects of tobacco.

One especially grave allegation concerns the recruitment and subsidy

of respected medical experts to support the company’s public interpreta-

tion of medical evidence. Glantz provides a list of medical consultants,

some from prestigious institutions, and the funding they received from

B&W—totaling some twenty million dollars from 1972 to 1991.10 The

documents indicated that some of the funding was diverted through third-

party organizations to conceal the source. In essence, Glantz accused the

tobacco industry of corrupting the search for knowledge.

B&W paid particular attention to refuting evidence of the addictive

nature of nicotine in order to defend smoking as a voluntary choice and

shift any blame for adverse effects to the victim. For the same reason huge

resources were expended to refute the medical evidence that passively

inhaling “second hand” environmental smoke can cause fatal disease,

even though industry-funded scientists confirmed independent research

determining the effect.11

The papers themselves appear to show an awareness of the sensitivity

of these materials. Information was deliberately routed through law offices

apparently in an effort to protect them from discovery with the shield

of the attorney-client privilege.12 There were instructions for destroying

documents.13 There may have even been attempts to ship particularly

incriminating papers out of the country, beyond the reach of American legal

jurisdiction.14 As to the validity of Glantz’s interpretations, readers are free

to evaluate these conclusions by referring to the documents themselves.

Did open and equal access to the cigarette papers have an impact? The

documents were used, at least as background, in a series of product liability

suits and lawsuits by states to recover medical expenses to treat preventable

diseases caused by tobacco products. In his foreword to the 1996 volume of

Glantz’s book, C. Everett Koop, who served as surgeon general from 1981

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36

to 1989, states that the documents revealed a level of scientific information

that was not available to him at the time he was charged with protecting the

nation’s health. Based on these documents, he regretted not taking more

decisive actions: “I have often wondered how many people died as a result

of the fact that the medical and public health professions were misled by

the tobacco industry.”15

The tobacco wars reached the highest levels of government. In 1996,

under the Clinton administration, the evidence that nicotine was as addic-

tive as heroin was sufficiently strong to place cigarettes under the jurisdic-

tion of the Food and Drug Administration. In 2000 the Supreme Court

withdrew FDA control, only to have the issue revive during the Obama

administration in 2009. As the battles continue, the documents are in a

stable form, instantly available and searchable. The information has become

better understood and widely disseminated. It resulted in local ordinances

to restrict smoking in bars, restaurants, and offices. A grass roots movement

took shape, first in small communities such as Lodi, California, and then

spreading throughout the country. Gradually, smoking tobacco, which had

recently been considered socially acceptable and even stylishly attractive,

came to be considered offensive and unhealthy and was banned from public

spaces. The culture changed. If the papers had remained in Glantz’s San

Francisco office, results may have been different.

The UCSF archivists have taken the project to the next level, continuing

to add materials from a variety of sources as they become available. The

Legacy Tobacco Documents Library comprises some ten million docu-

ments for a total in the range of fifty million pages. In addition, there is a

growing library of videos, including television advertising over the decades.

It is quite easy to compare what the industry knew about the health hazards

at a given time with the presentation to the public during prime time.

The Legacy Tobacco Documents Library remains a heavily used resource

years later, and its impact is far reaching. In 2009 Kirsten Gillibrand was

appointed senator from New York to replace Hilary Clinton. It became

known that Gillibrand had worked as an attorney for the tobacco industry,

and a key word search using her former name, Kirsten Rutnik, revealed

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37

numerous references in memos that clarified the level of work she was

doing for the tobacco industry.16

By opening access, the UCSF archivists ensured that hard data has

been available during these national debates. Was it legal? In case after case

the courts consistently placed freedom of information about a dangerous

health hazard above legal technicalities. Important factors weighed in the

decisions included (1) the life-and-death nature of the information and

the primacy of the public welfare; (2) the availability of a digitized version

that constituted a publication protected by the First Amendment; (3)

the misuse of attorney-client privilege by the tobacco companies, which

drew particular ire from the judges; and (4) the finding that the original

documents were not stolen, only copies, so the corporation still had its

property.17 Basically the public’s right to know information about its health

trumped the corporation’s claim to proprietary information. Anything

less, according to one judge, would be an “inversion of values.”18 The

cover-up of medical research data was judged to be fraud perpetrated by

a conspiracy. The judicial branch made the release of the cigarette papers

legal, at least ex post facto.

Opening the cigarette papers, it is now established, was legal—but was

it ethical? After the announcement of online access to the papers in July

1995, the archivists’ Internet discussion group (Archives and Archivists

Listserv) buzzed with arguments and counterarguments.

The final chapter has not yet been written, but the basic issues can be

seen, at least in outline. On the negative side of the balance sheet are many

serious concerns that would normally prompt restrictions: Provenance is

the cornerstone of archival theory, and the provenance of the material was

murky at best when it was first made public. The document copies were

clearly pirated by a disgruntled internal employee. They were selectively

chosen by someone hostile to the company, exposing the collection to

accusations of selection bias. There was no attempt to balance the docu-

mentation with materials favorable to the tobacco industry, creating the

impression of political advocacy. The information opened by UCSF was

clearly proprietary and highly confidential even if it was recorded on cop-

ies. A well-known consequence of prematurely opening sensitive material

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is that the owners of such potentially controversial documents will take

preventive measures such as sanitizing and destroying archives rather

than chance exposure. No one denies that the attorney-client privilege

was violated. No one denies that the privacy of the named individuals was

violated. Copyright and trade secrets were also involved. The UCSF staff

is highly trained and very aware of all of these issues. They knew all along

that releasing such documentation was not to be done lightly. Factored into

their decision was a highly persuasive countervailing argument.

On the positive side of the balance sheet is the gravity of the subject.

The American public has a right to know, and in a timely fashion, as policy

is being formulated. Freedom of speech is a fundamental condition for a

successful democratic process. It is essential to emphasize that the role of

the archives is to open for free review information that is needed as the basis

of a national discussion. The archivists themselves presented the documents

in context but also in a neutral way, free of commentary, editorializing, or

advocacy. Even in articles reporting the history of the cigarette papers, the

staff remained professional and reported on the access process, leaving the

content to the readers to evaluate. This restraint is key to the credibility

of their work. It provides the ethical bedrock for access decisions. Access

was taken to a new level. The online availability of the papers resembles a

publication. Blocking access to the Internet site would be similar to prior

restraint in traditional paper publication.

The cigarette papers, now far more than the original set that arrived

anonymously in 1994, contain a great deal of data on individuals. UCSF

deals with privacy issues on a case-by-case basis. If, for instance, there

is a complaint that private data, such as social security numbers, appear

online, measures are taken to redact out the personal information as long

as it does not compromise the document’s integrity.

While the unique aspects of the case are groundbreaking and fascinat-

ing in themselves, it is important to remember the mundane details. As

innovative as the UCSF staffers were in dealing with the cigarette papers,

they adhered to certain basics of archival practice. To begin with, the papers

were precisely within the collecting scope and mission of the archives and its

parent institution. The research papers are directly related to the scientific

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mission of the medical school; the corporate records are useful for the

public university’s role in promoting good health as a public service. The

original deposit was donated by a UCSF faculty member, and collecting

faculty papers is a core assignment. Beyond adhering to institutional goals,

the staff exercised a high level of professionalism. They correctly appraised

the nature of the documents sent anonymously to Glantz. They correctly

determined that the content was authentic, even though the provenance

was not known until much later. The content was of great importance for

the public welfare even though the papers were fragmentary, disorganized,

and initially from just one individual company. The staff also appraised the

political context of the documents accurately: Congress and the press were

already discussing these materials; they had to be made widely available

as quickly as possible to support this discussion. The staff was prepared

to use newly emerging technical tools to facilitate the process. They firmly

believed that the benefits of open access outweighed the costs, but it took

strength of character to stay the course. The archivists created a highly

innovative access model within a traditional archival framework.

Should this case serve as a precedent and model in similar situations?

When egregious practices cross a certain line, the civility of formal ethical

standards need not and should not be misused to cover up malfeasance

and fraud. Situations arise where the benefit of open access overrides

considerations such as attorney-client privilege. Here is where the archival

profession needs to do some work with legal experts and ethicists to deter-

mine just where to draw the line. The cigarette papers case demonstrates

that there are circumstances where open and equal access is the prime

consideration. One participant in the Internet discussion group phrased

it this way: “archivists should avoid political advocacy as a profession, but

we cannot shun the responsibility to promote the public’s right to know.”19

The UCSF professionals made an ethical choice that required an awareness

of the larger social context of the documents in question and went beyond

routine procedures. The decision made a difference in public perception

of a social issue at a crucial moment.

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The UCSF archivists were able to defend the choice against formidable

opposition because of legal and logistical support from their parent insti-

tution. It would be naïve to ignore the fact that unswerving support from

the University of California legal department was absolutely essential to

success. Much as one would like to think that truth always prevails in the

end, and that good decisions are always recognized at least eventually,

effective ethical choices often also require substantial resources.

Are the tobacco companies the only industry that has systematically

covered up vital public health data? Probably not. Archivists and records

managers are likely to encounter similar controversial materials. Returning

to the central question: should the lessons from the cigarette papers provide

a model to evaluate the risks and benefits of freedom of information? In

most cases, companies have been able to assert their right to keep internal

records private. How grave does the danger have to be to justify opening

privileged documents? Usually whistleblowers do not succeed, and often

they suffer career setbacks. How certain must the manager be of all the

facts before making a decision to go public? How does one guard against

false either/or dilemmas? The choices usually fall along a broad spectrum.

Making ethical choices requires the ability to see both detail and the big

picture, with both a microscope and a telescope. It is not easy to remain

objective and find the threshold where the public interest outweighs the

company’s rights. Several factors came together to make the cigarette

papers a major case in support of the free flow of information. Courts

decide on very specific cases, and often with inconsistent results. In the

conflict between proprietary information and the rights of the public,

decisions are also made on a case-by-case basis, and the decisions are

heavily dependent on the exact details. Even so, it would help to have more

research and discussion on how to achieve a balance of proprietary and

public rights to information.

While better parameters would be welcome, in the end, an individual

makes a decision, and no textbook can dictate the correct answers. Asked

if she would do it again, Karen Butter was unequivocal: yes, of course. Even

knowing the consequences, she would do the same thing again.20

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Blowing the Whistle

The cigarette papers case began with an employee surreptitiously copy-

ing privileged documents from business records and leaking them to the

press and other outlets of public information. This case is highly unusual.

However, all types of archives have the potential for a collision between

the interests of the organization and greater social values. The scenarios

sketched below come from seven different types of private and government

archives: manuscript, state, foundation, national, corporate, religious, and

university archives. Should archivists “blow the whistle” if they are in these

situations, and more importantly, how should they cope with the conflict

of interests involved?

Attorneys familiar with whistleblower cases stress that successful out-

comes are extremely rare. However noble, most employees who accuse their

institutions of wrongdoing damage their own careers without remedying

the problem they identified. Individual employees facing an ethical quan-

dary have limited access to the full story, and in most cases they do not

know the full factual background of the circumstances that trouble them.

The lack of complete knowledge makes it easy to attack the credibility of

the accuser, no matter how just the cause. In such circumstances it is easy

to become emotional about perceived malfeasance or injustice, but that

emotion can cloud one’s judgment. Organizations are self-protective of

their reputations, and most do not tolerate employees who go to the press

with allegations. The legal protections for whistleblowers are an incomplete

patchwork of inadequate provisions and typically are not very effective.

Some films and fictional accounts have romanticized whistleblowing as a

brave and dashing thing to do. The reality is usually far from romantic.

For archivists, who have a position of trust and access to proprietary and

restricted information, revealing those secrets can be seen as a violation

of professional ethics.

On the other hand, a good citizen cannot ignore blatant wrongdoing.

Experienced attorneys advise taking the time to learn as many facts of

the case as possible in a calm and deliberate manner. They suggest going

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through channels in the organization if needed, speaking in confidence,

maintaining trust with colleagues, and exploring a variety of remedies. If

the situation becomes emotional, one’s objectivity can be compromised.

Once an employee becomes isolated and perceived as a troublemaker, the

career consequences are severe, even if the whistleblower tries to change

jobs. The sacrifice may be in vain. Revealing or protesting against an ethical

lapse is thus a very serious matter, not to be done on a whim. It is potentially

libelous and can have serious consequences. One should not encourage

anyone to serve as a whistleblower without a realistic assessment of the

situation. To take that step is a very personal decision, one that should be

discussed well in advance with family and with legal counsel.

Seven Scenarios

The following case studies, while generalized, are based on actual incidents,

typical of the profession, in various types of archival repositories. A code

of ethics is helpful, but in addition archivists need to develop coping skills

to navigate situations such as these. These cases are meant to provide food

for thought, not to provide answers or solutions.

1. Manuscript collection: A manuscript dealer has befriended

lonely elderly people, stayed in their homes, and walked

off with manuscripts to sell later to others, such as your

repository. Can you buy the papers? Do you have an obli-

gation to call the police? Is it theft? Elder abuse? Or none of

your business? What if the elderly are not concerned about

the missing papers?

2. State archives: You are processing financial records

and suspect that a secretary had embezzled funds from

the agency that transferred the papers to the state archives.

It happened four years ago. Are you obligated to report

your suspicions, and to whom? What if it happened ten

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years ago? Does the timing matter? Does the amount of

money involved matter?

3. Foundation archives: While processing personal papers

from a wealthy donor you find evidence of a large financial

contribution, tax deductible, to your repository, on the

condition that the money be used for acquiring archival

materials relating to China. The check was cashed years

ago, and no Chinese manuscripts have been purchased.

You bring this to your supervisor’s attention, and he is

unconcerned. Has your ethical obligation been fulfilled by

reporting through the chain of command? Do you go over

his head? Do you go to the press?

4. National archives: Your supervisor tells you to shred some

“duplicate” documents. You suspect they contain evidence

of improper use of power to fire a government employee

for partisan reasons. Is it best to shred without reading, so

it is not your problem? Do you refuse? Are you required to

report? What if you are not entirely sure what happened,

but are assuming it was improper?

5. Corporate archives: You are a business archivist transfer-

ring records that show your company deliberately with-

held product liability information from injured consum-

ers. What do you do?

6. Religious archives: Letters in the archives accuse priests of

improper and illegal behavior with minors. Do you have

an obligation to report to the police?

7. University archives: Your repository has received a large

collection without an inventory from an alumnus. In the

boxes you find envelopes containing a white powder.

What do you do? Just return them? Have them tested?

Report to your supervisor? Report to police?

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Chapter 5 1 Karen Butter, personal communication with the author, May 29, 2009.

2 From its inception, the Legacy Tobacco Documents Library at the University of California medical school in San Francisco has collected documents that “were made available through litigation brought by the National Association of Attorneys General (NAAG) that resulted in the Master Settlement Agreement (1998)”; see http://legacy.library.ucsf.edu/about/about_collections.jsp. The UCSF website has a brief history of the collection: “The MSA settlement man-dated that the tobacco companies release their internal company documents to the public by depositing them into a repository in Minnesota as well as creat-ing and maintaining websites containing searchable electronic versions of the documents. The Legacy Tobacco Documents Library preserves and maintains electronic versions of these released documents, making them widely available to researchers and the general public”; see http://legacy.library.ucsf.edu/help/faq.jsp. Other online sources, such as the depository in Minnesota and industry websites, may eventually be closed. The LTDL website is considered the most permanent location for the “tobacco papers”; see http://legacy.library.ucsf.edu/about/about_data.jsp. While the initial box from an anonymous source had a puzzling history, all documents and multimedia items that are added to LTDL now have clearly traceable provenance. (All websites accessed June 7, 2009.) The author is grateful to Polina Ilieva for assistance in navigating these websites.

3 Philip J. Hilts, “Tobacco Company Was Silent on Hazards,” New York Times, May 7, 1994; Stanton A. Glantz, et al., “Looking Through a Keyhole at the Tobacco Industry: The Brown and Williamson Documents,” Journal of the American Medical Association 274, no. 3 (July 1995): 219–24, also related articles in the same issue; Stanton A. Glantz, et al., The Cigarette Papers (Berkeley: University of California Press, 1996), also available online at UCSF library website; John Wiener, “The Cigarette Papers,” Nation, January 1, 1996, also available at http://www.pbs.org/wgbh/pages/frontline/smoke/readings/wie-nerarticle.html (accessed April 9, 2009); Karen Butter, Robin Chandler, and John Kunze, “The Cigarette Papers: Issues in Publishing Materials in Multiple Formats,” D-Lib Magazine, November 1996; Stanton A. Glantz and Edith D. Balbach, Tobacco War: Inside the California Battles (Berkeley: University of California Press, 2000); Robin L. Chandler and Susan Storch, “Lighting Up the Internet: The Brown and Williamson Collection,” in Cox and Wallace, Archives and the Public Good; A. Landman and Stanton A. Glantz, “Tobacco Industry Efforts to Undermine Policy-Relevant Research,” American Journal of Public Health 99, no. 1 (January 2009): 45–58.

n o t e s f o r pa g e s 165–166 181

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45

n o t e s f o r pa g e s 167–177

4 Personal communication. Unless otherwise noted, all quotes from Stanley A. Glantz in author’s notes from an hour-long telephone interview conducted May 27, 2009.

5 Personal communication. All quotes from Karen Butter are taken from an email to the author dated May 29, 2009.

6 For examples of efforts to damage the careers of Glantz and his co-workers see Chandler and Storch, “Lighting Up the Internet,” 138. For more on retaliation by the tobacco companies see Landman and Glantz, “Tobacco Industry Efforts to Undermine Policy-Relevant Research.”

7 “Walk the plank” quote in Glantz interview with author, May 27, 2009. See also discussion of university legal department support in Glantz, Cigarette Papers, xix.

8 Chandler and Storch, “Lighting Up the Internet,” 147. See also Wiener, “The Cigarette Papers,” 5.

9 Glantz, Cigarette Papers, 15–21.


11 Glantz, Cigarette Papers, 397, 415, 432.

12 Glantz, Cigarette Papers, 242.



15 Glantz, Cigarette Papers, xiv.

16 Raymond Hernandez and David Kocieniewski, “As New Lawyer, Senator Was Active in Tobacco’s Defense,” New York Times, March 26, 2009, http://www.nytimes.com/2009/03/27/nyregion/27gillibrand.html (accessed October 5, 2009).



19 Butter, Chandler, and Kunze, “The Cigarette Papers: Issues in Publishing Materials in Multiple Formats,” 2.

20 Karen Butter, personal communication with the author, May 29, 2009.

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159

I.A popular government, without popular information, or the means

of acquiring it, is but a prologue to a farce or tragedy—or perhaps both.Knowledge will forever govern ignorance, and a people who mean to be

their own Governors must arm themselves with the power knowledge gives.

James Madison1

Government archivists play a crucial role maintaining the health and vitalityof the nation. As James Madison identified in the quotation above, the cor-nerstone of democracy is an informed citizenry with access to records of itsgovernment. Archives remain central to the democratic process itself. Thearchivist of the United States, John Carlin, defines the National Archives as

a public trust on which our democracy depends. It enables people toinspect for themselves the record of what government has done. Itenables officials and agencies to review their actions and helps citizenshold them accountable. It ensures continuing access to essentialevidence that documents the rights of American citizens; the actions offederal officials; the national experience.2

Such a lofty statement is not mere hyperbole, massaging the limp ego of alow-status profession. Carlin recognizes the archivist as an essential com-ponent in government infrastructure and the national consciousness.

Balancing Privacy and Access:Opening the Mississippi StateSovereignty Commission Records

Sarah Rowe-Sims, Sandra Boyd, and H. T. Holmes

10

This article appears courtesy of the Mississippi Department of Archives and History.

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159

I.A popular government, without popular information, or the means

of acquiring it, is but a prologue to a farce or tragedy—or perhaps both.Knowledge will forever govern ignorance, and a people who mean to be

their own Governors must arm themselves with the power knowledge gives.

James Madison1

Government archivists play a crucial role maintaining the health and vitalityof the nation. As James Madison identified in the quotation above, the cor-nerstone of democracy is an informed citizenry with access to records of itsgovernment. Archives remain central to the democratic process itself. Thearchivist of the United States, John Carlin, defines the National Archives as

a public trust on which our democracy depends. It enables people toinspect for themselves the record of what government has done. Itenables officials and agencies to review their actions and helps citizenshold them accountable. It ensures continuing access to essentialevidence that documents the rights of American citizens; the actions offederal officials; the national experience.2

Such a lofty statement is not mere hyperbole, massaging the limp ego of alow-status profession. Carlin recognizes the archivist as an essential com-ponent in government infrastructure and the national consciousness.

Balancing Privacy and Access:Opening the Mississippi StateSovereignty Commission Records

Sarah Rowe-Sims, Sandra Boyd, and H. T. Holmes

10

This article appears courtesy of the Mississippi Department of Archives and History.

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160 Privacy & Confidentiality Perspectives Balancing Privacy and Access 161

With this duty comes an ominous responsibility, which plunges the archivistinto the murky waters of privacy and access rights. This study examines howone state archives rose to the challenge, managing one of the most infa-mous collections of privacy-sensitive government records of twentieth-cen-tury America: The Mississippi State Sovereignty Commission Records.

II.

The History and Legal Mandate of the Mississippi Department ofArchives and History (MDAH)MDAH has a long tradition of protecting Mississippi’s finite culturalresources. Founded in 1902 as a state agency, it is the second-oldest statearchives in the nation.3 The creating legislation did not impose officialrestrictions on access to the records in MDAH’s custody. Dunbar Row-land, the agency’s first director, was clearly “more interested in providingaccess than in restricting any materials.”4 In an address to the AmericanHistorical Association in 1910, Rowland identified as the “greatest draw-back to investigation . . . the inaccessibility of public archives due tounnecessary restrictions.”5 In early MDAH annual reports, Rowlandaffirmed the agency’s “liberal” access policy, stating that “[t]he freestaccess to documents is allowed to every properly accredited studentengaged in serious work.”6

The Archives and Records Management Act of 1981 and the MississippiPublic Records Act of 1983 defined MDAH’s responsibilities more clearly.The 1981 law charged MDAH with the duty to maintain a “program incooperation with each agency for the selection and preservation of vitalrecords considered essential to the operation of government and to theprotection of the rights and privileges of citizens. . . .”7 Governmentrecords were defined as public property and opened to inspection, withthe exception of those specifically exempted by state law, court order, con-tractual agreement or “. . . those records which it is shown the publicinterest is best served by not disclosing to the public.” In addition, the actstated the MDAH would make records available “. . . at a reasonable timeand place under rules and regulations adopted by the Board of Trustees.”8

The 1983 Public Records Act and its subsequent amendments legallyreaffirmed access to government records in Mississippi. The statutedeclared public records to be open and accessible, except for thoserecords exempted by specific legislation. It further stipulated that nonex-empt records contained within exempt records be separated and madeavailable by agencies. In 1996, the act was amended to encompass thenew demands of electronic media. This amendment required agenciesto ensure access to electronic records, exempting software that was pro-

prietary in nature, that was obtained under a licensing agreement, orthat was considered “sensitive.”9 It also guarded against proprietary elec-tronic records systems, stressing that agencies must plan for publicaccess in their management of electronic records. The amendmentauthorized MDAH to assure access, stating that reproduction and stor-age of records of “enduring value” had to meet archival standards.10

III.

The “NKVD among the cotton patches”11

In a state whose image has largely been defined by racism, the Missis-sippi State Sovereignty Commission stands as an especially sinister insti-tution. From 1956 to 1977, this state agency collected information oncivil rights activists, acted as a clearinghouse for information on civilrights activities and legislation around the nation, funneled money toprosegregation organizations, and disseminated right-wing propaganda.Ironically, although its loudest proponents championed themselves aspart of a Christian crusade against the insidious “red menace” of com-munism, the commission more closely resembled Big Brother.

The commission was established in the wake of the 1954 United StatesSupreme Court decision, Brown v. Board of Education,12 which rejected asunconstitutional the notion of segregated “separate but equal” schools.Like other states below the Mason-Dixon Line, Mississippi passed a slewof legislation to shore up the walls of racial separation. Shrouded in therhetoric of states’ rights, the act creating the commission provided theagency with broad powers to spearhead the state’s response to Brown.The commission’s objective was to “do and perform any and all acts andthings deemed necessary and proper to protect the sovereignty of thestate of Mississippi, and her sister states” from a perceived encroachmentby the federal government.13 The governor served as ex-officio chairmanand state legislators composed its membership. The agency staffremained small, consisting of several gubernatorial appointees, a direc-tor, a public relations director, and a handful of investigators.

As a result of its broadly defined statutory mandate, the commissionperformed a myriad of duties. Activities loosely comprised three basicfunctions: investigative, public relations, and advisory. The focus of eachvaried according to the whim of the governor and the particular skills ofhis appointees. Perhaps the most infamous function involved investiga-tion. The commission likened itself to the FBI and the armed servicesintelligence agencies “during times of war seeking out intelligence infor-mation about the enemy and what the enemy proposes to do.”14 Routinework for investigators consisted of traveling around the state compiling

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With this duty comes an ominous responsibility, which plunges the archivistinto the murky waters of privacy and access rights. This study examines howone state archives rose to the challenge, managing one of the most infa-mous collections of privacy-sensitive government records of twentieth-cen-tury America: The Mississippi State Sovereignty Commission Records.

II.

The History and Legal Mandate of the Mississippi Department ofArchives and History (MDAH)MDAH has a long tradition of protecting Mississippi’s finite culturalresources. Founded in 1902 as a state agency, it is the second-oldest statearchives in the nation.3 The creating legislation did not impose officialrestrictions on access to the records in MDAH’s custody. Dunbar Row-land, the agency’s first director, was clearly “more interested in providingaccess than in restricting any materials.”4 In an address to the AmericanHistorical Association in 1910, Rowland identified as the “greatest draw-back to investigation . . . the inaccessibility of public archives due tounnecessary restrictions.”5 In early MDAH annual reports, Rowlandaffirmed the agency’s “liberal” access policy, stating that “[t]he freestaccess to documents is allowed to every properly accredited studentengaged in serious work.”6

The Archives and Records Management Act of 1981 and the MississippiPublic Records Act of 1983 defined MDAH’s responsibilities more clearly.The 1981 law charged MDAH with the duty to maintain a “program incooperation with each agency for the selection and preservation of vitalrecords considered essential to the operation of government and to theprotection of the rights and privileges of citizens. . . .”7 Governmentrecords were defined as public property and opened to inspection, withthe exception of those specifically exempted by state law, court order, con-tractual agreement or “. . . those records which it is shown the publicinterest is best served by not disclosing to the public.” In addition, the actstated the MDAH would make records available “. . . at a reasonable timeand place under rules and regulations adopted by the Board of Trustees.”8

The 1983 Public Records Act and its subsequent amendments legallyreaffirmed access to government records in Mississippi. The statutedeclared public records to be open and accessible, except for thoserecords exempted by specific legislation. It further stipulated that nonex-empt records contained within exempt records be separated and madeavailable by agencies. In 1996, the act was amended to encompass thenew demands of electronic media. This amendment required agenciesto ensure access to electronic records, exempting software that was pro-

prietary in nature, that was obtained under a licensing agreement, orthat was considered “sensitive.”9 It also guarded against proprietary elec-tronic records systems, stressing that agencies must plan for publicaccess in their management of electronic records. The amendmentauthorized MDAH to assure access, stating that reproduction and stor-age of records of “enduring value” had to meet archival standards.10

III.

The “NKVD among the cotton patches”11

In a state whose image has largely been defined by racism, the Missis-sippi State Sovereignty Commission stands as an especially sinister insti-tution. From 1956 to 1977, this state agency collected information oncivil rights activists, acted as a clearinghouse for information on civilrights activities and legislation around the nation, funneled money toprosegregation organizations, and disseminated right-wing propaganda.Ironically, although its loudest proponents championed themselves aspart of a Christian crusade against the insidious “red menace” of com-munism, the commission more closely resembled Big Brother.

The commission was established in the wake of the 1954 United StatesSupreme Court decision, Brown v. Board of Education,12 which rejected asunconstitutional the notion of segregated “separate but equal” schools.Like other states below the Mason-Dixon Line, Mississippi passed a slewof legislation to shore up the walls of racial separation. Shrouded in therhetoric of states’ rights, the act creating the commission provided theagency with broad powers to spearhead the state’s response to Brown.The commission’s objective was to “do and perform any and all acts andthings deemed necessary and proper to protect the sovereignty of thestate of Mississippi, and her sister states” from a perceived encroachmentby the federal government.13 The governor served as ex-officio chairmanand state legislators composed its membership. The agency staffremained small, consisting of several gubernatorial appointees, a direc-tor, a public relations director, and a handful of investigators.

As a result of its broadly defined statutory mandate, the commissionperformed a myriad of duties. Activities loosely comprised three basicfunctions: investigative, public relations, and advisory. The focus of eachvaried according to the whim of the governor and the particular skills ofhis appointees. Perhaps the most infamous function involved investiga-tion. The commission likened itself to the FBI and the armed servicesintelligence agencies “during times of war seeking out intelligence infor-mation about the enemy and what the enemy proposes to do.”14 Routinework for investigators consisted of traveling around the state compiling

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and equipment of the commission to the Department of Public Safety.24

A heated debate ensued in the legislature, as lawmakers introducedother bills designed to dispose of the records in various ways. African-American legislators called for the files to be opened, some legislatorsargued for a lengthy closure, while others voted for the records literallyto be burned.25

The vote to destroy the files prompted a firm response from MDAH.The MDAH board of trustees unanimously passed a resolution at its 28 Jan-uary 1977 meeting “strongly imploring the legislature” not to destroy therecords. The board voted to “immediately advise the appropriate membersof the Legislature” of its opposition to the “indiscriminate destruction ofthe records of the State Sovereignty Commission or any state records.”MDAH also stated that it would willingly take the records “in accordancewith any restrictions the Legislature [chose] to place on them.”26

Preservation advocates aired their views at the 18 February 1977House of Representatives Judiciary “B” Committee hearing. The chair ofthe MDAH board of trustees, former governor William Winter, arguedthat “there is too much historical value in these records to destroy themwithout giving historians some way to interpret this era of our history.”Winter further asserted that destroying the records seemed “inconsistentwith the way we do things and smacks of totalitarianism.”27 MDAH direc-tor Elbert Hilliard identified precedents for dealing with records of thisnature, citing the National Archives’ handling of the records of theUnited States House Un-American Activities Committee. Hilliard alsoassured the committee that MDAH had “room to seal and store therecords.”28 The result was the enactment on 3 March 1977 of anamended bill to abolish the commission but to seal its records at thearchives until 2027.29 The secretary of state’s office immediately trans-ferred nearly 133,000 pages of surviving commission records to MDAH,where they were secured in its vault.30 Because the records were statuto-rily sealed when the law was enacted, MDAH archivists did not have theopportunity to assess their physical condition or even confirm the con-tents of the filing cabinets.31

IV.

[W]e feel that it would be the bitterest irony to subject the many people whose files are so gathered to a cavalier and

uninhibited media spectacular.32

In January 1977, even as the Mississippi House debated the agency’sfate, the American Civil Liberties Union/Mississippi (ACLU/M) initi-ated an intense legal battle in the federal courts to open what it dubbed

reports on civil rights activities in each county. In addition to its investiga-tors, the commission also used paid informants and private detectives.15

Actual evidence of “racial agitation” was not necessary to attract thecommission’s attention. The rumor mill and race baiters fed the commis-sion, and any person or organization that appeared to transgress the raciallines or espouse a vaguely liberal perspective was a likely target. Followingthe passage of the Civil Rights Act of 1964,16 the Voting Rights Act of 1965,17

and other civil rights legislation, the tone of the reports changed. Reportsbegan to use the term “subversive” rather than “agitator.” The directorasserted that the commission was “not a super snooping agency trying tocrack down on any Negro who raises his hand.”18 Investigators wereinstructed to purge information demonstrating that the commission assistedin preventing voter registration. In reality, the commission continued to ful-fill its usual functions, although investigations in the late 1960s began tofocus on college campuses and “counter-culture” activities in general.19

The commission advised state and local government officials, lawenforcement personnel and members of the public. To discourage voterregistration, the commission routinely advised local governments to fireany employee who attempted to register. Prior to the 1964 Freedom Sum-mer, it conducted “Clinics” to instruct local law enforcement in how to han-dle the expected “invasion.” With the passage of federal civil rights legisla-tion, the commission focused on ways to circumvent the new regulations.20

Officially, Mississippi sought to present the face of racial harmony to therest of the world. The commission worked in secret to prevent news ofracial violence and intimidation from reaching the press. Its public rela-tions director wrote editorials for local newspapers that debunked nationalmedia reports. The agency acted as a clearinghouse for civil rights informa-tion, and its Speaker’s Bureau provided advocates who toured the nationpresenting Mississippi’s official perspective. The commission facilitatedright-wing propaganda activities by funneling state money to such groupsas the Citizens’ Council and the Washington, D.C.–based CoordinatingCommittee for Fundamental American Freedoms.21 The commission alsodonated small amounts of money to African-American individuals andorganizations sympathetic to segregation, hoping to attract those theytermed the “thinking Negroes of Mississippi.”22

By the 1970s in Mississippi, support of an openly racist, state-sanctioned commission no longer appeared politically expedient. InApril of 1973, Governor William Waller vetoed the Sovereignty Commis-sion’s appropriation and described the agency as “a stigma on the state’sgovernment.”23 Even before the ink dried on Waller’s veto, public specu-lation began over the files of the defunct commission. On the first day ofthe 1977 legislative session, H.B. 276 was introduced to transfer the files

51SAA SAMPLER


and equipment of the commission to the Department of Public Safety.24

A heated debate ensued in the legislature, as lawmakers introducedother bills designed to dispose of the records in various ways. African-American legislators called for the files to be opened, some legislatorsargued for a lengthy closure, while others voted for the records literallyto be burned.25

The vote to destroy the files prompted a firm response from MDAH.The MDAH board of trustees unanimously passed a resolution at its 28 Jan-uary 1977 meeting “strongly imploring the legislature” not to destroy therecords. The board voted to “immediately advise the appropriate membersof the Legislature” of its opposition to the “indiscriminate destruction ofthe records of the State Sovereignty Commission or any state records.”MDAH also stated that it would willingly take the records “in accordancewith any restrictions the Legislature [chose] to place on them.”26

Preservation advocates aired their views at the 18 February 1977House of Representatives Judiciary “B” Committee hearing. The chair ofthe MDAH board of trustees, former governor William Winter, arguedthat “there is too much historical value in these records to destroy themwithout giving historians some way to interpret this era of our history.”Winter further asserted that destroying the records seemed “inconsistentwith the way we do things and smacks of totalitarianism.”27 MDAH direc-tor Elbert Hilliard identified precedents for dealing with records of thisnature, citing the National Archives’ handling of the records of theUnited States House Un-American Activities Committee. Hilliard alsoassured the committee that MDAH had “room to seal and store therecords.”28 The result was the enactment on 3 March 1977 of anamended bill to abolish the commission but to seal its records at thearchives until 2027.29 The secretary of state’s office immediately trans-ferred nearly 133,000 pages of surviving commission records to MDAH,where they were secured in its vault.30 Because the records were statuto-rily sealed when the law was enacted, MDAH archivists did not have theopportunity to assess their physical condition or even confirm the con-tents of the filing cabinets.31

IV.

[W]e feel that it would be the bitterest irony to subject the many people whose files are so gathered to a cavalier and

uninhibited media spectacular.32

In January 1977, even as the Mississippi House debated the agency’sfate, the American Civil Liberties Union/Mississippi (ACLU/M) initi-ated an intense legal battle in the federal courts to open what it dubbed

reports on civil rights activities in each county. In addition to its investiga-tors, the commission also used paid informants and private detectives.15

Actual evidence of “racial agitation” was not necessary to attract thecommission’s attention. The rumor mill and race baiters fed the commis-sion, and any person or organization that appeared to transgress the raciallines or espouse a vaguely liberal perspective was a likely target. Followingthe passage of the Civil Rights Act of 1964,16 the Voting Rights Act of 1965,17

and other civil rights legislation, the tone of the reports changed. Reportsbegan to use the term “subversive” rather than “agitator.” The directorasserted that the commission was “not a super snooping agency trying tocrack down on any Negro who raises his hand.”18 Investigators wereinstructed to purge information demonstrating that the commission assistedin preventing voter registration. In reality, the commission continued to ful-fill its usual functions, although investigations in the late 1960s began tofocus on college campuses and “counter-culture” activities in general.19

The commission advised state and local government officials, lawenforcement personnel and members of the public. To discourage voterregistration, the commission routinely advised local governments to fireany employee who attempted to register. Prior to the 1964 Freedom Sum-mer, it conducted “Clinics” to instruct local law enforcement in how to han-dle the expected “invasion.” With the passage of federal civil rights legisla-tion, the commission focused on ways to circumvent the new regulations.20

Officially, Mississippi sought to present the face of racial harmony to therest of the world. The commission worked in secret to prevent news ofracial violence and intimidation from reaching the press. Its public rela-tions director wrote editorials for local newspapers that debunked nationalmedia reports. The agency acted as a clearinghouse for civil rights informa-tion, and its Speaker’s Bureau provided advocates who toured the nationpresenting Mississippi’s official perspective. The commission facilitatedright-wing propaganda activities by funneling state money to such groupsas the Citizens’ Council and the Washington, D.C.–based CoordinatingCommittee for Fundamental American Freedoms.21 The commission alsodonated small amounts of money to African-American individuals andorganizations sympathetic to segregation, hoping to attract those theytermed the “thinking Negroes of Mississippi.”22

By the 1970s in Mississippi, support of an openly racist, state-sanctioned commission no longer appeared politically expedient. InApril of 1973, Governor William Waller vetoed the Sovereignty Commis-sion’s appropriation and described the agency as “a stigma on the state’sgovernment.”23 Even before the ink dried on Waller’s veto, public specu-lation began over the files of the defunct commission. On the first day ofthe 1977 legislative session, H.B. 276 was introduced to transfer the files

52SAA SAMPLER

Balancing Privacy and Access 165

Opening the files would also end public speculation as to the extent of theacts of the Commission, much of which has far exceeded the record.39

The ACLU/M applauded Judge Barbour’s ruling, and the state governorand attorney general chose not to challenge the decision.40

On the day that the ruling was handed down, MDAH representativesmet with the state attorney general to discuss opening the files. Aftertwelve years of litigation, it was evident that the access plaintiffs wouldallow MDAH little time to prepare. During the discovery process, MDAHarchivists assessed both the physical condition of the papers and theirprocessing needs. Faced with an imminent opening, immediate anddrastic plans had to be developed for providing access within a matter ofa few days. The privacy advocates, however, moved to prevent the open-ing of the files, and the ruling that opened the files was immediatelystayed, pending an appeal to the Fifth Circuit Court of Appeals.41

The potential impact of the court’s ruling that opened the recordsmoved the MDAH board of trustees into action. Since the passage of theclosure act, and during the previous twelve years of litigation, MDAHhad been asked neither to comment on the issue and/or process nor toprovide testimony regarding any archival issues. The near-reality of hav-ing to open the records in a very short time served to focus the vision ofthe department.

The privacy plaintiffs began talking with MDAH staff about how toprovide access to the records with personal identifying informationredacted. Armed with this information, the privacy plaintiffs worked withsome of the access plaintiffs to develop a compromise settlement, whichwas given to MDAH for comment.

The proposed settlement would have required the MDAH to

Open all Commission records to the public after the records hadundergone privacy screening; except that records involving certainclasses of persons would be opened without screening:

deceased persons;all public officials of local, state and federal government at the timeeach record was created;all paid informers;all verified providers of information to the Commission, exceptingthose persons who provided information on white supremacist groups.

Notify all class members of their rights, including, but not limited to:publication in Mississippi and national newspapers;mailing to last known address;written notification to all relevant organizations.

164 Privacy & Confidentiality Perspectives

Mississippi’s “spy files.” As the case of American Civil Liberties Union of Mis-sissippi, Inc., et al. v. Cliff Finch Govenor of State of Mississippi, et al.33 woundits tortuous route through the courts, the central element emerged as adebate between access and privacy protection. For seven and a half yearsafter the lawsuit was filed, various court skirmishes occurred. At onepoint, the suit was dismissed by the federal district court, only to be rein-stated by the Fifth Circuit Court of Appeals. During this initial period,the debate centered on the question of whether the records shouldremain open or closed. Curiously, the arguments and decisions occurredbefore any commission records were available for discovery. Both sidesargued over records that no one had evaluated.

In October 1984, the plaintiffs were finally granted access to the filesfor discovery.34 Once the plaintiffs actually read the records, an internalschism developed. As a result, in December 1987, U.S. District CourtJudge William H. Barbour, Jr. divided the plaintiff class into two sub-classes: access plaintiffs and privacy plaintiffs. Access plaintiffs sought“unlimited public access” to the records, while privacy plaintiffs con-sisted of those who supported “access to the records for those named inthe records, but who further advocate no further access by other partieswithout the prior consent of each person or persons described in a par-ticular record.”35

One of the original plaintiffs, freelance journalist Ken Lawrence ofJackson, who favored full disclosure, summarized the access perspective:“[T]here’s nothing that anyone would want to keep secret.” He contin-ued, “[T]he need we have to understand the outrageous behavior of thestate so much overrides the technical claim of privacy that it doesn’t makeany sense.”36 In contrast, former Tougaloo College professor John Salter,one of the original plaintiffs, who now favored privacy, noted, “[W]e feelthat it would be the bitterest irony to subject the many people whose filesare so gathered to a cavalier and uninhibited media spectacular.”37

On 27 July 1989, the court declared the 1977 act sealing the recordsunconstitutional and ordered the files to be treated like “any other pub-lic record according to state and federal law.” The judge also stipulatedthat any class member could “file with the custodian of the SovereigntyCommission files any rebuttal to any allegation, charges or other infor-mation about the class member contained in such files.”38 In the ruling,the court strongly defended the importance of disclosure:

To open the files would further the general principle of informeddiscussion of the actions of government, while to leave the files closedwould perpetuate the attempt of the state to escape accountability.

53SAA SAMPLER


Opening the files would also end public speculation as to the extent of theacts of the Commission, much of which has far exceeded the record.39

The ACLU/M applauded Judge Barbour’s ruling, and the state governorand attorney general chose not to challenge the decision.40

On the day that the ruling was handed down, MDAH representativesmet with the state attorney general to discuss opening the files. Aftertwelve years of litigation, it was evident that the access plaintiffs wouldallow MDAH little time to prepare. During the discovery process, MDAHarchivists assessed both the physical condition of the papers and theirprocessing needs. Faced with an imminent opening, immediate anddrastic plans had to be developed for providing access within a matter ofa few days. The privacy advocates, however, moved to prevent the open-ing of the files, and the ruling that opened the files was immediatelystayed, pending an appeal to the Fifth Circuit Court of Appeals.41

The potential impact of the court’s ruling that opened the recordsmoved the MDAH board of trustees into action. Since the passage of theclosure act, and during the previous twelve years of litigation, MDAHhad been asked neither to comment on the issue and/or process nor toprovide testimony regarding any archival issues. The near-reality of hav-ing to open the records in a very short time served to focus the vision ofthe department.

The privacy plaintiffs began talking with MDAH staff about how toprovide access to the records with personal identifying informationredacted. Armed with this information, the privacy plaintiffs worked withsome of the access plaintiffs to develop a compromise settlement, whichwas given to MDAH for comment.

The proposed settlement would have required the MDAH to

Open all Commission records to the public after the records hadundergone privacy screening; except that records involving certainclasses of persons would be opened without screening:

deceased persons;all public officials of local, state and federal government at the timeeach record was created;all paid informers;all verified providers of information to the Commission, exceptingthose persons who provided information on white supremacist groups.

Notify all class members of their rights, including, but not limited to:publication in Mississippi and national newspapers;mailing to last known address;written notification to all relevant organizations.


Mississippi’s “spy files.” As the case of American Civil Liberties Union of Mis-sissippi, Inc., et al. v. Cliff Finch Govenor of State of Mississippi, et al.33 woundits tortuous route through the courts, the central element emerged as adebate between access and privacy protection. For seven and a half yearsafter the lawsuit was filed, various court skirmishes occurred. At onepoint, the suit was dismissed by the federal district court, only to be rein-stated by the Fifth Circuit Court of Appeals. During this initial period,the debate centered on the question of whether the records shouldremain open or closed. Curiously, the arguments and decisions occurredbefore any commission records were available for discovery. Both sidesargued over records that no one had evaluated.

In October 1984, the plaintiffs were finally granted access to the filesfor discovery.34 Once the plaintiffs actually read the records, an internalschism developed. As a result, in December 1987, U.S. District CourtJudge William H. Barbour, Jr. divided the plaintiff class into two sub-classes: access plaintiffs and privacy plaintiffs. Access plaintiffs sought“unlimited public access” to the records, while privacy plaintiffs con-sisted of those who supported “access to the records for those named inthe records, but who further advocate no further access by other partieswithout the prior consent of each person or persons described in a par-ticular record.”35

One of the original plaintiffs, freelance journalist Ken Lawrence ofJackson, who favored full disclosure, summarized the access perspective:“[T]here’s nothing that anyone would want to keep secret.” He contin-ued, “[T]he need we have to understand the outrageous behavior of thestate so much overrides the technical claim of privacy that it doesn’t makeany sense.”36 In contrast, former Tougaloo College professor John Salter,one of the original plaintiffs, who now favored privacy, noted, “[W]e feelthat it would be the bitterest irony to subject the many people whose filesare so gathered to a cavalier and uninhibited media spectacular.”37

On 27 July 1989, the court declared the 1977 act sealing the recordsunconstitutional and ordered the files to be treated like “any other pub-lic record according to state and federal law.” The judge also stipulatedthat any class member could “file with the custodian of the SovereigntyCommission files any rebuttal to any allegation, charges or other infor-mation about the class member contained in such files.”38 In the ruling,the court strongly defended the importance of disclosure:

To open the files would further the general principle of informeddiscussion of the actions of government, while to leave the files closedwould perpetuate the attempt of the state to escape accountability.

54SAA SAMPLER


opportunity to outline archival concerns to the court. In formulating itsplan, MDAH tempered archival requirements with the court’s immedi-ate needs and the strictures of time. MDAH adamantly insisted, however,that the physical and intellectual integrity of the files should be pre-served. Rejecting microfilming and photocopying options as economi-cally unfeasible for the long term, MDAH advocated imaging in order toleave the originals untouched and provide an exact, authentic electroniccopy coupled with an index. This electronic copy could meet both thecourt’s privacy stipulations by allowing archivists to work on a single“copy” of the document and the access needs of researchers by allowingthem to see that same “copy.” To further ensure authenticity, MDAHrejected optical character recognition (OCR) technology due to thepotential for data manipulation. In addition, the poor quality of the orig-inals and inclusion of much handwritten material made the job beyondthe capabilities of the OCR technology available at that time. Theinvolvement of archivists in the trial, presenting archival procedures andconcerns, was noticed by the court.

On 31 May 1994, Judge Barbour released a memorandum and opin-ion order, which declared the records open and established a privacyand disclosure procedure. Now sympathetic to archival concerns,Judge Barbour’s goal was to maintain “the original integrity of the files,while balancing the competing interests of the various plaintiffs in pri-vacy and disclosure.” He also stressed, however, that “no system of dis-closure will be perfect.”48 MDAH was given the task of implementingthe process within a set time frame. The archival process to be used incomplying with the court’s order was not mandated, but the followingsteps in the process were stipulated:

Compilation by MDAH of an index of all personal names appearing inthe recordsClassification by MDAH of each name as either a “victim” of Commissionsurveillance or a complicit “state actor”Notification by MDAH to class members that records were available forreviewResponse by class membersRedaction by MDAHOpening of redacted records49

Although Judge Barbour set a deadline for the completion of thisprocess, he expected that appeals would delay implementation. MDAHwas instructed to proceed with the compilation of the index whileawaiting the determination of the final redactions that would be made.The privacy plaintiffs appealed the 1994 order, which was upheld by


The proposed settlement defined “class members” as any individuals whothought their civil rights may have been violated by the commission.42

After reviewing the proposed settlement and carefully considering thesituation, the MDAH board of trustees strongly endorsed privacy screen-ing and offered a counter proposal that would require the archives to

Make all Commission records open to the public after the records hadundergone privacy screening; except that records involving certainclasses of persons would be opened without screening:

deceased persons, provided however that the Department wouldscreen for privacy of family members of deceased persons;members of the Commission and public employees of theCommission;

All records would be declared open, public records in 2027Notify class through publication in state and national newspapersProvide a means for a class member to provide written rebuttal to anyrecords pertaining to him.

To accomplish the privacy screening, the archives proposed convertingthe records into electronic form and using electronic editing capabilitiesfor rapid privacy screening.43

The possibility of such a settlement failed due to the plaintiffs’ inabil-ity to agree on a final plan. But the MDAH board had identified itsresponsibility to the matter as it then stood, taken a strong stand on theneed for privacy protection, and realized that its opinion needed to beheard by the appeals court. Because the state attorney general haddeclined to enter an appeal on the district court’s ruling, the MDAHboard’s position would not be heard in court. As required by state law,the board requested the attorney general’s permission to hire privatecounsel to represent the department as a privacy advocate.44 Threemonths later, that request was denied.45

On 14 September 1990, the Fifth Circuit held that Judge Barbour’sruling “did not adequately take into consideration privacy interest [sic]of persons named in agency files” and directed the district court to“devise a plan” to accommodate privacy interests.46 In September 1993,Judge Barbour held an evidentiary hearing to explore the privacy andaccess issues. Litigants, including representatives from MDAH, outlinedtheir recommendations for opening the files.47

Prior to this point, the archives’ role in the case had been solely thatof legal custodian of the records. Although MDAH had proven instru-mental in saving the records from the funeral pyre, as a state agency itwas a defendant in the ACLU litigation. MDAH had never beenrequested to testify. The hearings now afforded archivists their first

55SAA SAMPLER


opportunity to outline archival concerns to the court. In formulating itsplan, MDAH tempered archival requirements with the court’s immedi-ate needs and the strictures of time. MDAH adamantly insisted, however,that the physical and intellectual integrity of the files should be pre-served. Rejecting microfilming and photocopying options as economi-cally unfeasible for the long term, MDAH advocated imaging in order toleave the originals untouched and provide an exact, authentic electroniccopy coupled with an index. This electronic copy could meet both thecourt’s privacy stipulations by allowing archivists to work on a single“copy” of the document and the access needs of researchers by allowingthem to see that same “copy.” To further ensure authenticity, MDAHrejected optical character recognition (OCR) technology due to thepotential for data manipulation. In addition, the poor quality of the orig-inals and inclusion of much handwritten material made the job beyondthe capabilities of the OCR technology available at that time. Theinvolvement of archivists in the trial, presenting archival procedures andconcerns, was noticed by the court.

On 31 May 1994, Judge Barbour released a memorandum and opin-ion order, which declared the records open and established a privacyand disclosure procedure. Now sympathetic to archival concerns,Judge Barbour’s goal was to maintain “the original integrity of the files,while balancing the competing interests of the various plaintiffs in pri-vacy and disclosure.” He also stressed, however, that “no system of dis-closure will be perfect.”48 MDAH was given the task of implementingthe process within a set time frame. The archival process to be used incomplying with the court’s order was not mandated, but the followingsteps in the process were stipulated:

Compilation by MDAH of an index of all personal names appearing inthe recordsClassification by MDAH of each name as either a “victim” of Commissionsurveillance or a complicit “state actor”Notification by MDAH to class members that records were available forreviewResponse by class membersRedaction by MDAHOpening of redacted records49

Although Judge Barbour set a deadline for the completion of thisprocess, he expected that appeals would delay implementation. MDAHwas instructed to proceed with the compilation of the index whileawaiting the determination of the final redactions that would be made.The privacy plaintiffs appealed the 1994 order, which was upheld by


The proposed settlement defined “class members” as any individuals whothought their civil rights may have been violated by the commission.42

After reviewing the proposed settlement and carefully considering thesituation, the MDAH board of trustees strongly endorsed privacy screen-ing and offered a counter proposal that would require the archives to

Make all Commission records open to the public after the records hadundergone privacy screening; except that records involving certainclasses of persons would be opened without screening:

deceased persons, provided however that the Department wouldscreen for privacy of family members of deceased persons;members of the Commission and public employees of theCommission;

All records would be declared open, public records in 2027Notify class through publication in state and national newspapersProvide a means for a class member to provide written rebuttal to anyrecords pertaining to him.

To accomplish the privacy screening, the archives proposed convertingthe records into electronic form and using electronic editing capabilitiesfor rapid privacy screening.43

The possibility of such a settlement failed due to the plaintiffs’ inabil-ity to agree on a final plan. But the MDAH board had identified itsresponsibility to the matter as it then stood, taken a strong stand on theneed for privacy protection, and realized that its opinion needed to beheard by the appeals court. Because the state attorney general haddeclined to enter an appeal on the district court’s ruling, the MDAHboard’s position would not be heard in court. As required by state law,the board requested the attorney general’s permission to hire privatecounsel to represent the department as a privacy advocate.44 Threemonths later, that request was denied.45

On 14 September 1990, the Fifth Circuit held that Judge Barbour’sruling “did not adequately take into consideration privacy interest [sic]of persons named in agency files” and directed the district court to“devise a plan” to accommodate privacy interests.46 In September 1993,Judge Barbour held an evidentiary hearing to explore the privacy andaccess issues. Litigants, including representatives from MDAH, outlinedtheir recommendations for opening the files.47

Prior to this point, the archives’ role in the case had been solely thatof legal custodian of the records. Although MDAH had proven instru-mental in saving the records from the funeral pyre, as a state agency itwas a defendant in the ACLU litigation. MDAH had never beenrequested to testify. The hearings now afforded archivists their first

56SAA SAMPLER


by one archivist and replicated by a second, with the search resultsapproved by a third archivist. To ensure complete privacy, MDAHredacted all other names in these records before providing copies forthe respondents.51 As before, the redactions were done by one archivist,checked by a second, and reviewed by a third. Production of the respon-dent review copies followed the same process. At the end of the ninety-day period in August of 1997, MDAH mailed the respondents printoutsgenerated from the image database containing every document in whichthe requested name appeared, along with instructions on how to declareprivacy options.52 Most respondents chose full disclosure, but forty-twopeople selected a privacy option.53 The court reviewed the requested pri-vacy redactions and in each case issued a sealed order determining thefinal redactions. A number of plaintiffs contested the court’s redactionand requested the court to review its decision on their records. The deci-sion by the court to rule individually on each redaction request removeda huge burden from MDAH. Initially, discussions had centered on thearchivists redacting names and identifying information. MDAH quicklyrealized that such a task would be nearly impossible. Many whose nameswere in the records were still living, and the historical period covered bythe records had been scrutinized by historians and others. It would havebeen too easy to positively identify an individual. MDAH feared resultinglitigation from such identifications. From the MDAH perspective, thecourt was truly wise in requiring the individuals to ask for their ownredactions, with a final court review of the request.

On 13 January 1998, Judge Barbour ordered all noncontested com-mission records to be opened in March. Contested records includedthose of individuals who had made privacy requests and status chal-lenges. In response to the order, MDAH finalized its system to providepublic access to the noncontested records.54

On 17 March 1998, twenty-one years after the lawsuit was filed, thebulk of the records of the defunct Mississippi State Sovereignty Commis-sion were made available in electronic format on three computer work-stations in the MDAH library. Once again, the production of thisredacted version required the three-stage procedure of checking eachimage and index term. Six percent of the records remained in litigationand stayed closed. There was intense national media attention on open-ing day, and very few researchers appeared. In the following days andweeks, a large number of individuals, many who had never been in anarchives before, came to look at the records. Three staff archivists wereassigned to handle the large number of requests mailed in by peoplewho could not visit the archives.


the Fifth Circuit Court of Appeals. The United States Supreme Courtrefused to consider the matter. In November 1996, with all avenues ofappeal exhausted, the timetable outlined by Judge Barbour’s 1994court order finally went into effect.50

Advertisement Period 45 daysInquiries from interested individuals 90 daysMDAH response to inquiries with copies of records 90 daysInquirer response to privacy options (“inquiry stage”) 30 daysFinal preparation prior to public opening 30 days

The appeals afforded MDAH valuable extra time to complete thelaborious and tricky task of imaging and indexing the records. At thetime that MDAH was ordered to index the records, the agency had noprior experience in dealing with privacy issues of this magnitude. WhenMDAH became responsible for redacting records to protect personalprivacy interests, a total re-engineering of attitude was required.

The resulting changes were most apparent in, and had the mostimmediate impact on, the indexing and processing of the records.Because an unintentional slip-up on the archivists’ part could result inthe loss of individual privacy protection, and possibly result in litigationagainst the agency and its staff, every step of the process was checked,rechecked, and checked again. A team of three archivists was assignedthis responsibility, and scanning began. Each scanned image wasreviewed by two archivists for accuracy and completeness. Two archivistsseparately indexed the personal names on each page, and a thirdarchivist checked each page. Ultimately, the index consisted of approxi-mately 300,000 name occurrences comprising approximately 87,000unique name forms.

The inquiry stage began in January of 1997. MDAH alerted the publicby placing advertisements in the local and national press for three suc-cessive weeks. These advertisements invited people who believed thattheir names might appear in the records to write to MDAH. The agencyreceived approximately one thousand initial inquiries within the ninety-day period established by the court, and the MDAH processing teammailed detailed questionnaires to each respondent. This notificationprocedure also required triple-checking of addresses, mailings, receipts,and requests. Seven hundred completed questionnaires were returned.In the next ninety-day period established by the court, the processingteam searched for individuals in the records based on information pro-vided in the questionnaires. Records containing approximately 360 ofthe individuals’ names were located. Again, each search was performed

57SAA SAMPLER


by one archivist and replicated by a second, with the search resultsapproved by a third archivist. To ensure complete privacy, MDAHredacted all other names in these records before providing copies forthe respondents.51 As before, the redactions were done by one archivist,checked by a second, and reviewed by a third. Production of the respon-dent review copies followed the same process. At the end of the ninety-day period in August of 1997, MDAH mailed the respondents printoutsgenerated from the image database containing every document in whichthe requested name appeared, along with instructions on how to declareprivacy options.52 Most respondents chose full disclosure, but forty-twopeople selected a privacy option.53 The court reviewed the requested pri-vacy redactions and in each case issued a sealed order determining thefinal redactions. A number of plaintiffs contested the court’s redactionand requested the court to review its decision on their records. The deci-sion by the court to rule individually on each redaction request removeda huge burden from MDAH. Initially, discussions had centered on thearchivists redacting names and identifying information. MDAH quicklyrealized that such a task would be nearly impossible. Many whose nameswere in the records were still living, and the historical period covered bythe records had been scrutinized by historians and others. It would havebeen too easy to positively identify an individual. MDAH feared resultinglitigation from such identifications. From the MDAH perspective, thecourt was truly wise in requiring the individuals to ask for their ownredactions, with a final court review of the request.

On 13 January 1998, Judge Barbour ordered all noncontested com-mission records to be opened in March. Contested records includedthose of individuals who had made privacy requests and status chal-lenges. In response to the order, MDAH finalized its system to providepublic access to the noncontested records.54

On 17 March 1998, twenty-one years after the lawsuit was filed, thebulk of the records of the defunct Mississippi State Sovereignty Commis-sion were made available in electronic format on three computer work-stations in the MDAH library. Once again, the production of thisredacted version required the three-stage procedure of checking eachimage and index term. Six percent of the records remained in litigationand stayed closed. There was intense national media attention on open-ing day, and very few researchers appeared. In the following days andweeks, a large number of individuals, many who had never been in anarchives before, came to look at the records. Three staff archivists wereassigned to handle the large number of requests mailed in by peoplewho could not visit the archives.


the Fifth Circuit Court of Appeals. The United States Supreme Courtrefused to consider the matter. In November 1996, with all avenues ofappeal exhausted, the timetable outlined by Judge Barbour’s 1994court order finally went into effect.50

Advertisement Period 45 daysInquiries from interested individuals 90 daysMDAH response to inquiries with copies of records 90 daysInquirer response to privacy options (“inquiry stage”) 30 daysFinal preparation prior to public opening 30 days

The appeals afforded MDAH valuable extra time to complete thelaborious and tricky task of imaging and indexing the records. At thetime that MDAH was ordered to index the records, the agency had noprior experience in dealing with privacy issues of this magnitude. WhenMDAH became responsible for redacting records to protect personalprivacy interests, a total re-engineering of attitude was required.

The resulting changes were most apparent in, and had the mostimmediate impact on, the indexing and processing of the records.Because an unintentional slip-up on the archivists’ part could result inthe loss of individual privacy protection, and possibly result in litigationagainst the agency and its staff, every step of the process was checked,rechecked, and checked again. A team of three archivists was assignedthis responsibility, and scanning began. Each scanned image wasreviewed by two archivists for accuracy and completeness. Two archivistsseparately indexed the personal names on each page, and a thirdarchivist checked each page. Ultimately, the index consisted of approxi-mately 300,000 name occurrences comprising approximately 87,000unique name forms.

The inquiry stage began in January of 1997. MDAH alerted the publicby placing advertisements in the local and national press for three suc-cessive weeks. These advertisements invited people who believed thattheir names might appear in the records to write to MDAH. The agencyreceived approximately one thousand initial inquiries within the ninety-day period established by the court, and the MDAH processing teammailed detailed questionnaires to each respondent. This notificationprocedure also required triple-checking of addresses, mailings, receipts,and requests. Seven hundred completed questionnaires were returned.In the next ninety-day period established by the court, the processingteam searched for individuals in the records based on information pro-vided in the questionnaires. Records containing approximately 360 ofthe individuals’ names were located. Again, each search was performed

58SAA SAMPLER


gent historian will use these records with caution, they undoubtedly pro-vide a treasure trove of hitherto unseen information.

In addition to their historical value, the commission’s records can alsobe used to bring justice in cases of civil rights atrocities. In February 1994,after leaked commission documents prompted a third retrial, Byron De LaBeckwith was convicted for the 1963 slaying of Medgar Evers, the Missis-sippi state field secretary for the National Association for the Advancementof Colored People.57 On 17 March 1998, MDAH delivered commissiondocuments to the family of Vernon Dahmer, a Hattiesburg businessmanand activist who was killed when the Klan firebombed his home in January1966.58 These documents were then used in the subsequent trial and con-viction of former Ku Klux Klan grand wizard Sam Bowers in August 1998.Newly released commission documents are also being reviewed in connec-tion with the 1964 murders of civil rights workers James Chaney, AndrewGoodman, and Michael Schwerner in Neshoba County and in the February1967 murder of Wharlest Jackson in Natchez.59

The May 1994 ruling, which established the procedure to open therecords, attempted to balance the needs of privacy against the demandsof access. In his earlier 1989 ruling, Judge Barbour clearly consideredpublic interest to far outweigh privacy concerns. In overturning the 1989ruling in 1990, however, the Fifth Circuit Court of Appeals stressed thatthe “disclosure strand of the privacy interest in turn includes the right tobe free from the government disclosing private matters in which it doesnot have a legitimate proper concern.”60 Subsequently, while stating in1994 “that so long as the Commission files remain sealed, there is a con-tinuing violation of the federal constitutional rights of those named inthe files,” Judge Barbour acknowledged that the rights of victims “wouldbe violated again if information about these victims is disseminated with-out their knowledge.” In his ruling, Judge Barbour thus recognized theimpossibility of finding a perfect solution to this dilemma, stating that“no system of disclosure will be perfect.”61

VI.

The “ . . . greatest drawback to investigation” was “the inaccessibilityof public archives due to unnecessary restrictions.”62

The Mississippi Sovereignty Commission records left an indelibleimpression on the archivists charged with their maintenance. Processingsuch an infamous and historically significant collection constituted agrave responsibility. The case also identified the total absence of anagency policy on handling privacy-sensitive records and led to a reap-praisal of current agency practices.


Subsequent releases in July 2000 and January 2001 concluded theopening of the files. These newly opened pages incorporated the court-approved redactions requested by a small number of respondents who,in exercising their court-established rights, chose to have certain identi-fying information permanently expunged from the records. In addition,the releases included over two thousand pages of rebuttal material sub-mitted by individuals named in the files. In 2002, the proprietary in-house electronic version was converted to an open system to make itWeb accessible.55

V.No system of disclosure will be perfect.56

The fight to open commission records mirrors the issues inherent inthe privacy versus access debate. The commission, a state-funded agency,gathered information on thousands of Mississippi citizens and noncitizens.Investigative reports often contained intimate and slanderous details,many of which were the product of hearsay, concerning individual lives.

This type of information was precisely that which the privacy plaintiffssought to have restricted. Former activists Edwin King and John Salterclearly had an “unwarranted invasion of personal privacy” in mind when,after reviewing documents in the discovery process, they broke from theACLU/M access camp and doggedly sued to protect privacy rights. Insubsequent arguments, Salter and King firmly denounced the commis-sion’s illegal activity and demanded government accountability. Still,they always promoted the notion of individual privacy rights. Salter andKing also sought to protect the privacy of deceased persons and of thoseparties who would have no reason to believe that their names might bein the files.

Conversely, the access plaintiffs focused on the public’s right to know.The commission’s records clearly document a pivotal period in the stateand national history. The civil rights movement was in effect a secondAmerican revolution, a reaffirmation of the principles that forged anation from a colony. In recent years, civil rights historiography hasevolved from chronicling great men and big events to providing detailedmovement studies. The commission records are of immense historicalvalue in establishing a fuller understanding of the role of ordinary menand women in the civil rights movement. County by county and organi-zation by organization, the commission documented civil rights activi-ties. Furthermore, the files reveal in detail the extent of white resistance,illustrating the white establishment’s deep-seated commitment to the sys-tem of racial apartheid. Although, as with any historical source, the dili-

59SAA SAMPLER


gent historian will use these records with caution, they undoubtedly pro-vide a treasure trove of hitherto unseen information.

In addition to their historical value, the commission’s records can alsobe used to bring justice in cases of civil rights atrocities. In February 1994,after leaked commission documents prompted a third retrial, Byron De LaBeckwith was convicted for the 1963 slaying of Medgar Evers, the Missis-sippi state field secretary for the National Association for the Advancementof Colored People.57 On 17 March 1998, MDAH delivered commissiondocuments to the family of Vernon Dahmer, a Hattiesburg businessmanand activist who was killed when the Klan firebombed his home in January1966.58 These documents were then used in the subsequent trial and con-viction of former Ku Klux Klan grand wizard Sam Bowers in August 1998.Newly released commission documents are also being reviewed in connec-tion with the 1964 murders of civil rights workers James Chaney, AndrewGoodman, and Michael Schwerner in Neshoba County and in the February1967 murder of Wharlest Jackson in Natchez.59

The May 1994 ruling, which established the procedure to open therecords, attempted to balance the needs of privacy against the demandsof access. In his earlier 1989 ruling, Judge Barbour clearly consideredpublic interest to far outweigh privacy concerns. In overturning the 1989ruling in 1990, however, the Fifth Circuit Court of Appeals stressed thatthe “disclosure strand of the privacy interest in turn includes the right tobe free from the government disclosing private matters in which it doesnot have a legitimate proper concern.”60 Subsequently, while stating in1994 “that so long as the Commission files remain sealed, there is a con-tinuing violation of the federal constitutional rights of those named inthe files,” Judge Barbour acknowledged that the rights of victims “wouldbe violated again if information about these victims is disseminated with-out their knowledge.” In his ruling, Judge Barbour thus recognized theimpossibility of finding a perfect solution to this dilemma, stating that“no system of disclosure will be perfect.”61

VI.

The “ . . . greatest drawback to investigation” was “the inaccessibilityof public archives due to unnecessary restrictions.”62

The Mississippi Sovereignty Commission records left an indelibleimpression on the archivists charged with their maintenance. Processingsuch an infamous and historically significant collection constituted agrave responsibility. The case also identified the total absence of anagency policy on handling privacy-sensitive records and led to a reap-praisal of current agency practices.


Subsequent releases in July 2000 and January 2001 concluded theopening of the files. These newly opened pages incorporated the court-approved redactions requested by a small number of respondents who,in exercising their court-established rights, chose to have certain identi-fying information permanently expunged from the records. In addition,the releases included over two thousand pages of rebuttal material sub-mitted by individuals named in the files. In 2002, the proprietary in-house electronic version was converted to an open system to make itWeb accessible.55

V.No system of disclosure will be perfect.56

The fight to open commission records mirrors the issues inherent inthe privacy versus access debate. The commission, a state-funded agency,gathered information on thousands of Mississippi citizens and noncitizens.Investigative reports often contained intimate and slanderous details,many of which were the product of hearsay, concerning individual lives.

This type of information was precisely that which the privacy plaintiffssought to have restricted. Former activists Edwin King and John Salterclearly had an “unwarranted invasion of personal privacy” in mind when,after reviewing documents in the discovery process, they broke from theACLU/M access camp and doggedly sued to protect privacy rights. Insubsequent arguments, Salter and King firmly denounced the commis-sion’s illegal activity and demanded government accountability. Still,they always promoted the notion of individual privacy rights. Salter andKing also sought to protect the privacy of deceased persons and of thoseparties who would have no reason to believe that their names might bein the files.

Conversely, the access plaintiffs focused on the public’s right to know.The commission’s records clearly document a pivotal period in the stateand national history. The civil rights movement was in effect a secondAmerican revolution, a reaffirmation of the principles that forged anation from a colony. In recent years, civil rights historiography hasevolved from chronicling great men and big events to providing detailedmovement studies. The commission records are of immense historicalvalue in establishing a fuller understanding of the role of ordinary menand women in the civil rights movement. County by county and organi-zation by organization, the commission documented civil rights activi-ties. Furthermore, the files reveal in detail the extent of white resistance,illustrating the white establishment’s deep-seated commitment to the sys-tem of racial apartheid. Although, as with any historical source, the dili-

60SAA SAMPLER


counsel at the Office of the Attorney General to interpret applicablestate and federal statutes and case law and to construct access solutions.A general screening policy has been developed that can be modified forspecific circumstances. With minimal guidance from the privacy officer,processing archivists are alerted to the type of documents that mightrequire further consideration. Once relevant collections have been ear-marked for consideration, the privacy officer either works with the pro-cessing archivists or personally conducts a lengthy review of the records.When the privacy officer limits access, finding aids include explanatorystatements and the privacy officer remains on-call to assist referencestaff. A significant problem remains with the failure of state agencies todesign their records to allow the efficient redaction of personal data.Currently, MDAH is prohibited from “determining the nature and formof records” created by other agencies,65 and until such time as thearchival program can influence recordkeeping practices, long-term pri-vacy protection problems will abound.

To date, the privacy officer’s primary focus has been to review the valid-ity of existing restrictions. Many closed nineteenth- and early twentieth-century government records have now been reopened. There has alsobeen a concerted effort to generally heighten staff awareness of potentialprivacy and related legal issues. Staff members have attended workshopson copyright and privacy and confidentiality, and the services of a copy-right attorney have been retained. In addition, the records schedulingprocess has been overhauled. Access issues now receive greater emphasisat the time of records scheduling. Vague determinations rarely slip by.

The tasks are colossal and remain far from completion. Many semi-processed collections lie in limbo awaiting a privacy review. Staffing limi-tations have required the shelving of a systematic approach to accessassessment in favor of ad hoc responses to the most pressing needs. Inaddition, as MDAH prepared for a new building in 2003, energiesshifted to preparations for the move. However, despite all of its currentinadequacies, the archives recognizes the importance of protecting pri-vacy and the groundwork is in place.

VII.

Any ethical stance constrains someone’s freedom; that does not meansuch a stance is unreasonable or unjust. In the end, our acceptance of

limitations on the pursuit of knowledge in order to protect a greatercommon interest is what distinguishes us as moral beings.66

Archivists do not exist in a vacuum, but must respond appropriately tothe social, cultural, and political environment in which they live and


As noted above, MDAH’s legal mandate is demanding. For the first sev-eral years of litigation, after having successfully saved the records fromdestruction in 1977, MDAH remained passive. With the first ruling,MDAH found itself merely reacting to events. The Sovereignty Commis-sion saga brought into stark focus that passivity is not an option in a mod-ern information-hungry and litigious society. MDAH needed to establishpolicies and procedures for dealing with privacy-sensitive materials and tostep beyond the traditional role as a mere keeper of records. MDAHacknowledged that responsibility in January 1990 when the board oftrustees, contrary to the positions taken by the state governor and attorneygeneral, endorsed privacy screening for the commission records.

Development of a program has not been easy. No state statutoryauthority provides for privacy in public records unless those records arespecifically deemed confidential by a state law. MDAH has had to workwithout specific statutory authority to provide privacy screening, but hasalso had to meet the requirements of applicable federal law and courtdecisions regarding privacy protection. Increasingly, the easy availabilityof personal information in electronic format requires MDAH to be evenmore diligent to help prevent the use of archival data for identity theftand similar acts.

Accordingly, MDAH established the position of privacy officer to over-see access issues. Initially, many nineteenth- and early twentieth-centuryrecords were closed as statutorily confidential or exempt from public dis-closure since the passage of the 1983 Mississippi Public Records Act.63

Records such as public hospital admission registers had been availablefor public research for decades, but our initial reading of the currentstatutes indicated that closure was required. After the records wereclosed, researchers were required to obtain a court order for access tothese previously open records. MDAH later determined that the legalprinciple of prior publication applied—that is, all of the records thatwere publicly available prior to the 1983 Public Records Act had in effectbeen published. Consequently, MDAH reopened the records.

MDAH also became aware of the need for a state archival program tomonitor federal court opinions. For example, the Fifth Circuit Courtopinion in Tarlton v. United States64 that prisoner records may be confi-dential resulted in a reassessment of MDAH prisoner records and theclosure of a number of records series. Again, after a lengthy review,many of these records were reopened, but one series of probation andparole records containing victim statements remains closed.

Currently, the privacy officer identifies existing collections containingprivacy-sensitive records and responds to requests for assistance fromprocessing archivists. The privacy officer consults with MDAH’s legal

61SAA SAMPLER


counsel at the Office of the Attorney General to interpret applicablestate and federal statutes and case law and to construct access solutions.A general screening policy has been developed that can be modified forspecific circumstances. With minimal guidance from the privacy officer,processing archivists are alerted to the type of documents that mightrequire further consideration. Once relevant collections have been ear-marked for consideration, the privacy officer either works with the pro-cessing archivists or personally conducts a lengthy review of the records.When the privacy officer limits access, finding aids include explanatorystatements and the privacy officer remains on-call to assist referencestaff. A significant problem remains with the failure of state agencies todesign their records to allow the efficient redaction of personal data.Currently, MDAH is prohibited from “determining the nature and formof records” created by other agencies,65 and until such time as thearchival program can influence recordkeeping practices, long-term pri-vacy protection problems will abound.

To date, the privacy officer’s primary focus has been to review the valid-ity of existing restrictions. Many closed nineteenth- and early twentieth-century government records have now been reopened. There has alsobeen a concerted effort to generally heighten staff awareness of potentialprivacy and related legal issues. Staff members have attended workshopson copyright and privacy and confidentiality, and the services of a copy-right attorney have been retained. In addition, the records schedulingprocess has been overhauled. Access issues now receive greater emphasisat the time of records scheduling. Vague determinations rarely slip by.

The tasks are colossal and remain far from completion. Many semi-processed collections lie in limbo awaiting a privacy review. Staffing limi-tations have required the shelving of a systematic approach to accessassessment in favor of ad hoc responses to the most pressing needs. Inaddition, as MDAH prepared for a new building in 2003, energiesshifted to preparations for the move. However, despite all of its currentinadequacies, the archives recognizes the importance of protecting pri-vacy and the groundwork is in place.

VII.

Any ethical stance constrains someone’s freedom; that does not meansuch a stance is unreasonable or unjust. In the end, our acceptance of

limitations on the pursuit of knowledge in order to protect a greatercommon interest is what distinguishes us as moral beings.66

Archivists do not exist in a vacuum, but must respond appropriately tothe social, cultural, and political environment in which they live and


As noted above, MDAH’s legal mandate is demanding. For the first sev-eral years of litigation, after having successfully saved the records fromdestruction in 1977, MDAH remained passive. With the first ruling,MDAH found itself merely reacting to events. The Sovereignty Commis-sion saga brought into stark focus that passivity is not an option in a mod-ern information-hungry and litigious society. MDAH needed to establishpolicies and procedures for dealing with privacy-sensitive materials and tostep beyond the traditional role as a mere keeper of records. MDAHacknowledged that responsibility in January 1990 when the board oftrustees, contrary to the positions taken by the state governor and attorneygeneral, endorsed privacy screening for the commission records.

Development of a program has not been easy. No state statutoryauthority provides for privacy in public records unless those records arespecifically deemed confidential by a state law. MDAH has had to workwithout specific statutory authority to provide privacy screening, but hasalso had to meet the requirements of applicable federal law and courtdecisions regarding privacy protection. Increasingly, the easy availabilityof personal information in electronic format requires MDAH to be evenmore diligent to help prevent the use of archival data for identity theftand similar acts.

Accordingly, MDAH established the position of privacy officer to over-see access issues. Initially, many nineteenth- and early twentieth-centuryrecords were closed as statutorily confidential or exempt from public dis-closure since the passage of the 1983 Mississippi Public Records Act.63

Records such as public hospital admission registers had been availablefor public research for decades, but our initial reading of the currentstatutes indicated that closure was required. After the records wereclosed, researchers were required to obtain a court order for access tothese previously open records. MDAH later determined that the legalprinciple of prior publication applied—that is, all of the records thatwere publicly available prior to the 1983 Public Records Act had in effectbeen published. Consequently, MDAH reopened the records.

MDAH also became aware of the need for a state archival program tomonitor federal court opinions. For example, the Fifth Circuit Courtopinion in Tarlton v. United States64 that prisoner records may be confi-dential resulted in a reassessment of MDAH prisoner records and theclosure of a number of records series. Again, after a lengthy review,many of these records were reopened, but one series of probation andparole records containing victim statements remains closed.

Currently, the privacy officer identifies existing collections containingprivacy-sensitive records and responds to requests for assistance fromprocessing archivists. The privacy officer consults with MDAH’s legal

62SAA SAMPLER


work. Archivists fulfill a dual role. They provide access to the recordsthat they maintain and they protect the subjects of those records. Thisduality is stressed in the Code of Ethics for Archivists, which states:

Archivists answer courteously and with a spirit of helpfulness allreasonable inquiries about their holdings, and encourage use of them tothe greatest extent compatible with institutional policies, preservation ofholdings, legal considerations, individual rights, donor agreements, andjudicious use of archival resources. They explain pertinent restrictions topotential users, and apply them equitably.

Use is tempered by privacy considerations. The code directs archivists to“ . . . weigh the need for openness and the need to respect privacyrights to determine whether the release of the records or informationfrom records would constitute an invasion of privacy.”67

Thus, while archivists perform a dual role, they have a single purpose.Access policies should not be viewed as raising the sinister specter of cen-sorship. Access and privacy are not contradictions, but as Heather Mac-Neil concludes in her study of the ethics of disclosure:

. . . any ethical stance constrains someone’s freedom; that does notmean such a stance is unreasonable or unjust. In the end, ouracceptance of limitations on the pursuit of knowledge in order to protecta greater common interest is what distinguishes us as moral beings.68

Archivists often are wary of establishing draconian restrictions, yetthey must manage their collections in an ethical manner. Access policiesshould be based on legal obligations and require archivists to keepabreast of evolving state and federal laws. Access policies should encom-pass responsible collection management and reference policies, but notcensorship. They afford archivists the opportunity to truly address andrespond to the needs of the public. Access policies require dialogue withthe public. By explaining the need for such policies, archivists can articu-late their professional responsibilities. Furthermore, by being responsiveto and communicating with the public, archivists foster a better under-standing of the profession. Thus, access policies enable archivists to showthat our profession constitutes a crucial element of the national informa-tion infrastructure and remains vital to the democratic process. Toreassert John Carlin’s statement, the opening of the Sovereignty Com-mission records affirms the archival role in enabling people to see forthemselves just what the state government did and allows Mississippi citi-zens to hold the government accountable. In the final analysis, fulfillingsuch a noble function is a rare honor.

Notes to Pages 150–163 175

Chapter 10. Balancing Privacy and Access1. James Madison, letter to W. T. Barry, 4 August 1822, in Letters and Other Writings of

James Madison, vol. 3, ed. Philip R. Fendall (Philadelphia: Lippincott, 1865), 276.2. John W. Carlin, “Strategic Directions for the National Archives and Records Adminis-

tration,” National Archives and Records Administration, 9 September 1998 availableas of 2002 at http://www.nara.gov/nara/vision/vision.html.

3. Created on 26 February 1902 by S.B. 26, Laws of Mississippi, chapter 52, the depart-ment followed by a year the establishment of the Alabama Department of Archivesand History.

4. Madel Morgan to Raymond D. Geselbracht, Archivist, Office of the PresidentialLibraries, Washington D.C., 26 November 1985, Series 1297: Division Director’s Cor-respondence, Mississippi Department of Archives and History.

5. Dunbar Rowland, “The Concentration of State and National Archives,” American His-torical Association Annual Report (1910), 298.

6. Mississippi Department of Archives and History, Seventh Annual Report of the Director ofArchives and History of the State of Mississippi (1 October 1907–1 October 1908), 20;Tenth Annual Report (1 November 1909–3 October 1910), 11.

7. Mississippi Code Annotated (1972), Title 25, Chapter 59, Section 17-15.8. Ibid., 25-59-27.9. Mississippi Attorney General’s Opinion to W. R. Lewis, 7 December 1995.10. Mississippi Code Annotated (1972), 25-59-29 (Mississippi Laws, 1996, Chapter 453,

560–64).11. Bill Minor, New Orleans Times-Picayune, 22 April 1973.12. 347 U.S. 483 (1954).13. General Laws of the State of Mississippi, 1956, Chapter 365, 520–24.14. Unsigned Sovereignty Commission speech, filing date 13 July 1958, S.C. Records id.

# 7-0-1-56-2-1-1.15. Erle Johnston, memo, 24 June 1965, S.C. Records id. # 9-31-4-3-1-1-1.16. 42 U.S.C.A. 2000a-2000a-6.17. 79 Stat. 437, 42 U.S.C.A. 1973.18. Johnston, memo S.C. Records, id. # 99-34-0-14-1-1-1.19. Johnston, memo 8 February 1965, S.C. Records, id. # 99-62-0-33-1-1-1; Johnston,

memo, 11 February 1965, S.C. Records, id. # 99-62-0-196-1-1-1.20. Johnston, memo, 23 June 1964, S.C. Records, id. # 99-36-0-21-1-1-1 to 4-1-1-1. Johnston

to Hon. Doty Jackson, 10 February 1966, S.C. Records, id. # 99-62-0-94-1-1-1 to 2-1-1.21. Johnston, letter to Federation of Constitutional Government, 4 May 1964, S.C.

Records, id. # 6-70-0-165-1-1-1; Johnston, speech, Canton Lyons’ Club, 13 May 1964,S.C. Records, id. # 99-62-0-16-3-1-1- to 5-1-1-1; Laws of Mississippi, Chapter 157, 9 April1964, 135–36; Johnston, memo, 5 June 1964, S.C. Records, id. # 99-36-0-26-1-1-1;Johnston, memo, Senate and House Appropriations Committee, 25 May 1964, S.C.Records, id. # 99-36-0-38-1-1-1. Report, “Citizen Council Grant,” S.C. Records, id. #99-30-0-46-1-1-1 to 2-1-1.

22. Johnston, memo to Governor Johnson, 29 March 1965, S.C. Records, id. # 99-34-0-9-1-1-1 to -2-1-1.

23. Commercial Appeal, 28 September 1997.24. Journal of the House of Representatives of the state of Mississippi at a regular session thereof in

the city of Jackson commencing Tuesday, January 4, 1977, 19.25. E. Hilliard, letter to MDAH Board, 24 January 1977, Series 1250: Minutes and

Related Material, MDAH; House Journal, Regular Session, 1977, 19, 121, 82; Daily News,28 January 1977; Erle Johnston, Mississippi’s Defiant Years, 1953–1973: An Interpretive

63SAA SAMPLER


work. Archivists fulfill a dual role. They provide access to the recordsthat they maintain and they protect the subjects of those records. Thisduality is stressed in the Code of Ethics for Archivists, which states:

Archivists answer courteously and with a spirit of helpfulness allreasonable inquiries about their holdings, and encourage use of them tothe greatest extent compatible with institutional policies, preservation ofholdings, legal considerations, individual rights, donor agreements, andjudicious use of archival resources. They explain pertinent restrictions topotential users, and apply them equitably.

Use is tempered by privacy considerations. The code directs archivists to“ . . . weigh the need for openness and the need to respect privacyrights to determine whether the release of the records or informationfrom records would constitute an invasion of privacy.”67

Thus, while archivists perform a dual role, they have a single purpose.Access policies should not be viewed as raising the sinister specter of cen-sorship. Access and privacy are not contradictions, but as Heather Mac-Neil concludes in her study of the ethics of disclosure:

. . . any ethical stance constrains someone’s freedom; that does notmean such a stance is unreasonable or unjust. In the end, ouracceptance of limitations on the pursuit of knowledge in order to protecta greater common interest is what distinguishes us as moral beings.68

Archivists often are wary of establishing draconian restrictions, yetthey must manage their collections in an ethical manner. Access policiesshould be based on legal obligations and require archivists to keepabreast of evolving state and federal laws. Access policies should encom-pass responsible collection management and reference policies, but notcensorship. They afford archivists the opportunity to truly address andrespond to the needs of the public. Access policies require dialogue withthe public. By explaining the need for such policies, archivists can articu-late their professional responsibilities. Furthermore, by being responsiveto and communicating with the public, archivists foster a better under-standing of the profession. Thus, access policies enable archivists to showthat our profession constitutes a crucial element of the national informa-tion infrastructure and remains vital to the democratic process. Toreassert John Carlin’s statement, the opening of the Sovereignty Com-mission records affirms the archival role in enabling people to see forthemselves just what the state government did and allows Mississippi citi-zens to hold the government accountable. In the final analysis, fulfillingsuch a noble function is a rare honor.

Notes to Pages 150–163 175

Chapter 10. Balancing Privacy and Access1. James Madison, letter to W. T. Barry, 4 August 1822, in Letters and Other Writings of

James Madison, vol. 3, ed. Philip R. Fendall (Philadelphia: Lippincott, 1865), 276.2. John W. Carlin, “Strategic Directions for the National Archives and Records Adminis-

tration,” National Archives and Records Administration, 9 September 1998 availableas of 2002 at http://www.nara.gov/nara/vision/vision.html.

3. Created on 26 February 1902 by S.B. 26, Laws of Mississippi, chapter 52, the depart-ment followed by a year the establishment of the Alabama Department of Archivesand History.

4. Madel Morgan to Raymond D. Geselbracht, Archivist, Office of the PresidentialLibraries, Washington D.C., 26 November 1985, Series 1297: Division Director’s Cor-respondence, Mississippi Department of Archives and History.

5. Dunbar Rowland, “The Concentration of State and National Archives,” American His-torical Association Annual Report (1910), 298.

6. Mississippi Department of Archives and History, Seventh Annual Report of the Director ofArchives and History of the State of Mississippi (1 October 1907–1 October 1908), 20;Tenth Annual Report (1 November 1909–3 October 1910), 11.

7. Mississippi Code Annotated (1972), Title 25, Chapter 59, Section 17-15.8. Ibid., 25-59-27.9. Mississippi Attorney General’s Opinion to W. R. Lewis, 7 December 1995.10. Mississippi Code Annotated (1972), 25-59-29 (Mississippi Laws, 1996, Chapter 453,

560–64).11. Bill Minor, New Orleans Times-Picayune, 22 April 1973.12. 347 U.S. 483 (1954).13. General Laws of the State of Mississippi, 1956, Chapter 365, 520–24.14. Unsigned Sovereignty Commission speech, filing date 13 July 1958, S.C. Records id.

# 7-0-1-56-2-1-1.15. Erle Johnston, memo, 24 June 1965, S.C. Records id. # 9-31-4-3-1-1-1.16. 42 U.S.C.A. 2000a-2000a-6.17. 79 Stat. 437, 42 U.S.C.A. 1973.18. Johnston, memo S.C. Records, id. # 99-34-0-14-1-1-1.19. Johnston, memo 8 February 1965, S.C. Records, id. # 99-62-0-33-1-1-1; Johnston,

memo, 11 February 1965, S.C. Records, id. # 99-62-0-196-1-1-1.20. Johnston, memo, 23 June 1964, S.C. Records, id. # 99-36-0-21-1-1-1 to 4-1-1-1. Johnston

to Hon. Doty Jackson, 10 February 1966, S.C. Records, id. # 99-62-0-94-1-1-1 to 2-1-1.21. Johnston, letter to Federation of Constitutional Government, 4 May 1964, S.C.

Records, id. # 6-70-0-165-1-1-1; Johnston, speech, Canton Lyons’ Club, 13 May 1964,S.C. Records, id. # 99-62-0-16-3-1-1- to 5-1-1-1; Laws of Mississippi, Chapter 157, 9 April1964, 135–36; Johnston, memo, 5 June 1964, S.C. Records, id. # 99-36-0-26-1-1-1;Johnston, memo, Senate and House Appropriations Committee, 25 May 1964, S.C.Records, id. # 99-36-0-38-1-1-1. Report, “Citizen Council Grant,” S.C. Records, id. #99-30-0-46-1-1-1 to 2-1-1.

22. Johnston, memo to Governor Johnson, 29 March 1965, S.C. Records, id. # 99-34-0-9-1-1-1 to -2-1-1.

23. Commercial Appeal, 28 September 1997.24. Journal of the House of Representatives of the state of Mississippi at a regular session thereof in

the city of Jackson commencing Tuesday, January 4, 1977, 19.25. E. Hilliard, letter to MDAH Board, 24 January 1977, Series 1250: Minutes and

Related Material, MDAH; House Journal, Regular Session, 1977, 19, 121, 82; Daily News,28 January 1977; Erle Johnston, Mississippi’s Defiant Years, 1953–1973: An Interpretive

64SAA SAMPLER

54. Clarion-Ledger, 14 January 1998.55. The Sovereignty Commission Records On-line are available at http://www.mdah.

state.ms.us.56. Quoted from ACLU v. Fordice.57. Evers was leading an integration campaign in Jackson, Mississippi, at the time he was shot

and killed outside of his home by a sniper. Byron De La Beckwith died in prison in 2001.58. Respected grocery store owner, community leader, and activist, Vernon Dahmer

offered to pay poll taxes to enable poor people to vote. Following a local radio sta-tion broadcast of his offer, Dahmer’s Hattiesburg home was firebombed. He suc-cumbed on 10 January 1966, from severe burns.

59. Wharlest Jackson was the treasurer of the Natchez branch of the NAACP. He waskilled instantly on 27 February 1967 when a bomb exploded in his car.

60. ACLU v. Fordice.61. Ibid.62. Dunbar Rowland, “The Concentration of State and National Archives,” American His-

torical Association Annual Report (1910), 298.63. Mississippi Code Annotated (1972) Section 25-61-1.64. Tarlton v. United States, 430 F.2d 1531 (5th Cir. 1970).65. Mississippi Code Annotated (1972) Section 25-59-16(f).66. Heather MacNeil, Without Consent: The Ethics of Disclosing Personal Information in Public

Archives (Metuchen, N.J.: Society of American Archivists and Scarecrow Press, 1992),172–73.

67. The Council of the Society of American Archivists, “Code of Ethics for Archivists”(Chicago: Society of American Archivists, 1992), 3–4.

68. MacNeil, Without Consent, 172–73.

Documentary with Personal Experiences (Forest, Miss.: Lake Harbor Publishers, 1990),379–80; Yasuhiro Katagiri, The Mississippi State Sovereignty Commission—Civil Rights andState’s Rights (Jackson: University Press of Mississippi, 2001), 415–18.

26. “Department of Archives and History, Minutes of a Meeting of the Board of Trustees,January 28, 1977,” Series 1250, MDAH; Clarion-Ledger, 29 January 1977.

27. Tupelo Daily Journal, 17 February 1977.28. Daily News, 17 February 1977; Clarion-Ledger, 17 February 1977, 18 February 1977;

Johnston, Defiant Years, 381; Katagiri, Mississippi State Sovereignty Commission—CivilRights and States’ Rights, note 15, 668; Tupelo Daily Journal, 17 February 1977.

29. Laws of Mississippi, 1977, Chapter 320, 447–48.30. “Department of Archives and History, Minutes of a Meeting of the Executive Com-

mittee Board of Trustees, March 11, 1977,” Series 1250, MDAH; Laws of Mississippi,1977, Chapter 320, 447–48; Clarion-Ledger, 22 May 1977. Actually, the total number ofpages would not be known for twenty-five years.

31. Four years later, the 1981 Archives and Records Management Act would givearchivists the authority to “inspect closed or restricted records in order to appraisethem for archival significance.” Unfortunately, that law could not be applied to theSovereignty Commission records.

32. Clarion-Ledger, 28 July 1989.33. 638 F.2d 1336 (5th Cir. 1981), 31 Fed. R. Srv. 2d (Callaghan) 380.34. Calvin Trillin, “State Secrets,” The New Yorker, 29 May 1995, 58; Daily News, 30 Octo-

ber 1984, 29 November 1984.35. American Civil Liberties Union (“ACLU”) v. Fordice, 969 F. Supp. 403 (S.D. Miss. 1994).36. Daily News, 31 December 1990; Civil Action J77-0047(B), American Civil Liberties Union

(“ACLU”) v. Mabus, 719 F. Supp. 1345 (S.D. Miss. 1989).37. Clarion-Ledger, 28 July 1989.38. ACLU v. Mabus, 719 F. Supp. 1345 (S.D. Miss. 1989).39. Ibid.40. Clarion-Ledger, 28 July 1989.41. ACLU v. Mabus.42. Series 1250: Minutes and Related Materials, 1990: Jan 19.43. Ibid.44. Ibid.45. Series 1254: Executive Directors Correspondence, 1990: 27 April.46. American Civil Liberties Union of Mississippi, Inc. v. State of Mississippi, 911 F. 2d 1066

(5th Cir. 1990).47. ACLU v. Fordice, 969 F. Supp. 403 (S.D.Miss. 1994); Clarion-Ledger, 4 November 1989,

23 November 1989, 21 September 1993, 24 September 1993, 30 September 1993;Washington Post, 6 February 1994.

48. ACLU v. Fordice; Memorandum and Opinion Order, Civil Action No. J77-0047B, filed31 May 1994.

49. ACLU v. Fordice.50. Clarion-Ledger, 1 June 1994; Dixon Pyles to Clerk of Fifth Circuit Court of Appeals, 4

November 1994, Sovereignty Commission “Control Folder,” MDAH; John R. Salter toM. Bowers, 28 December 1994, ibid.; American Civil Liberties Union of Mississippi, Inc. v.King, 84 F. 3d 784 (5th Cir. 1996); Clarion-Ledger, 14 June 1996, 16 September 1996,19 November 1996.

51. Because the final scope of required redaction was yet to be determined, all othernames were redacted.

52. Inquiry Packet rough draft and notations, Control Folder, MDAH.53. ACLU v. Fordice.

176 Notes to Pages 163–169 Notes to Pages 169–174 177

65SAA SAMPLER

54. Clarion-Ledger, 14 January 1998.55. The Sovereignty Commission Records On-line are available at http://www.mdah.

state.ms.us.56. Quoted from ACLU v. Fordice.57. Evers was leading an integration campaign in Jackson, Mississippi, at the time he was shot

and killed outside of his home by a sniper. Byron De La Beckwith died in prison in 2001.58. Respected grocery store owner, community leader, and activist, Vernon Dahmer

offered to pay poll taxes to enable poor people to vote. Following a local radio sta-tion broadcast of his offer, Dahmer’s Hattiesburg home was firebombed. He suc-cumbed on 10 January 1966, from severe burns.

59. Wharlest Jackson was the treasurer of the Natchez branch of the NAACP. He waskilled instantly on 27 February 1967 when a bomb exploded in his car.

60. ACLU v. Fordice.61. Ibid.62. Dunbar Rowland, “The Concentration of State and National Archives,” American His-

torical Association Annual Report (1910), 298.63. Mississippi Code Annotated (1972) Section 25-61-1.64. Tarlton v. United States, 430 F.2d 1531 (5th Cir. 1970).65. Mississippi Code Annotated (1972) Section 25-59-16(f).66. Heather MacNeil, Without Consent: The Ethics of Disclosing Personal Information in Public

Archives (Metuchen, N.J.: Society of American Archivists and Scarecrow Press, 1992),172–73.

67. The Council of the Society of American Archivists, “Code of Ethics for Archivists”(Chicago: Society of American Archivists, 1992), 3–4.

68. MacNeil, Without Consent, 172–73.

Documentary with Personal Experiences (Forest, Miss.: Lake Harbor Publishers, 1990),379–80; Yasuhiro Katagiri, The Mississippi State Sovereignty Commission—Civil Rights andState’s Rights (Jackson: University Press of Mississippi, 2001), 415–18.

26. “Department of Archives and History, Minutes of a Meeting of the Board of Trustees,January 28, 1977,” Series 1250, MDAH; Clarion-Ledger, 29 January 1977.

27. Tupelo Daily Journal, 17 February 1977.28. Daily News, 17 February 1977; Clarion-Ledger, 17 February 1977, 18 February 1977;

Johnston, Defiant Years, 381; Katagiri, Mississippi State Sovereignty Commission—CivilRights and States’ Rights, note 15, 668; Tupelo Daily Journal, 17 February 1977.

29. Laws of Mississippi, 1977, Chapter 320, 447–48.30. “Department of Archives and History, Minutes of a Meeting of the Executive Com-

mittee Board of Trustees, March 11, 1977,” Series 1250, MDAH; Laws of Mississippi,1977, Chapter 320, 447–48; Clarion-Ledger, 22 May 1977. Actually, the total number ofpages would not be known for twenty-five years.

31. Four years later, the 1981 Archives and Records Management Act would givearchivists the authority to “inspect closed or restricted records in order to appraisethem for archival significance.” Unfortunately, that law could not be applied to theSovereignty Commission records.

32. Clarion-Ledger, 28 July 1989.33. 638 F.2d 1336 (5th Cir. 1981), 31 Fed. R. Srv. 2d (Callaghan) 380.34. Calvin Trillin, “State Secrets,” The New Yorker, 29 May 1995, 58; Daily News, 30 Octo-

ber 1984, 29 November 1984.35. American Civil Liberties Union (“ACLU”) v. Fordice, 969 F. Supp. 403 (S.D. Miss. 1994).36. Daily News, 31 December 1990; Civil Action J77-0047(B), American Civil Liberties Union

(“ACLU”) v. Mabus, 719 F. Supp. 1345 (S.D. Miss. 1989).37. Clarion-Ledger, 28 July 1989.38. ACLU v. Mabus, 719 F. Supp. 1345 (S.D. Miss. 1989).39. Ibid.40. Clarion-Ledger, 28 July 1989.41. ACLU v. Mabus.42. Series 1250: Minutes and Related Materials, 1990: Jan 19.43. Ibid.44. Ibid.45. Series 1254: Executive Directors Correspondence, 1990: 27 April.46. American Civil Liberties Union of Mississippi, Inc. v. State of Mississippi, 911 F. 2d 1066

(5th Cir. 1990).47. ACLU v. Fordice, 969 F. Supp. 403 (S.D.Miss. 1994); Clarion-Ledger, 4 November 1989,

23 November 1989, 21 September 1993, 24 September 1993, 30 September 1993;Washington Post, 6 February 1994.

48. ACLU v. Fordice; Memorandum and Opinion Order, Civil Action No. J77-0047B, filed31 May 1994.

49. ACLU v. Fordice.50. Clarion-Ledger, 1 June 1994; Dixon Pyles to Clerk of Fifth Circuit Court of Appeals, 4

November 1994, Sovereignty Commission “Control Folder,” MDAH; John R. Salter toM. Bowers, 28 December 1994, ibid.; American Civil Liberties Union of Mississippi, Inc. v.King, 84 F. 3d 784 (5th Cir. 1996); Clarion-Ledger, 14 June 1996, 16 September 1996,19 November 1996.

51. Because the final scope of required redaction was yet to be determined, all othernames were redacted.

52. Inquiry Packet rough draft and notations, Control Folder, MDAH.53. ACLU v. Fordice.

176 Notes to Pages 163–169 Notes to Pages 169–174 177